GIFT   OF 


GIFT 
MAY  20  1914 


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THE 


MINIMUM  WAGE 


o 


WITH    PARTICULAR    REFERENCE    TO    THE    LEGIS- 
LATIVE MINIMUM  WAGE  UNDER  THE 
MINNESOTA  STATUTE 
OF  1913 


By  ROME  G.  BROWN, 

Minneapolis,  Minn. 


[2nd  Print] 


SYNOPSIS  AND  INDEX. 

Page. 

Scope  of  This  Discussion 1 

The  Minimum  Wage  as  an  Ethical  Measure 4 

The  Minimum  Wage  as  an  Economic  Measure 8 

Certain  Economic  Objections  Stated :   10 

(1)  Creates  Artificial  Discrimination 10 

(2)  Destructive  of  Business 12 

(3)  Increases  Prices 12 

(4)  Minimum   Wage   Tends   to   Become   Maximum 

Wage 13 

(5)  Increases  Number  of  Unemployed 15 

Prerequisites  to  a  Legislative  Minimum  Wage 16 

Certain  Necessary  Remedies  to  Obviate  Resulting  Evils, 

Discussed 17 

The  Efficacy  of  Promoting  Co-operation   19 

Voluntary  Aid  by  Employers 21 

THE  LEGISLATIVE  MINIMUM  WAGE. 

Present  Minimum  Wage  Legislation  in  U.  S. 25 

Minimum  Wage  Statutes  in  Other  Countries 27 

The  Minnesota  Statute  of  1913  30 

-  Practical  Questions  Suggested  under  the  Minnesota  Stat- 
ute    31 

The  Minnesota  Statute  is  Unconstitutional  36 

Decisions  as  to  Employes  Engaged  in  Public  Work  ....  39 
Decisions  as  to  Employes  in  Exceptionally  Unhealthful  or 

Hazardous  Occupations  41 

The  New  York  Bakery  Shop  Case 43 

The  Oregon  Case, — Women  in  Laundries 49 

The  Case  of  the  Noble  State  Bank  v.  Haskell 53 

A  Legislative  Minimum  Wage  for  Private  Employment  is 

Unconstitutional 57 

Amendment  to  the  State  Constitution  Authorizing  Mini- 
mum Wage  in  Private  Employment,  Does  Not  Do  Away 

284677 


with  Constitutional  Objections 62 

The  Minnesota  Statute  Provides  for  No  Hearing  for  the 

Employer  Affected 64 

The  Statute  Makes  the  Order  of  the  Commission  Final 

Without  Right  of  Review  by  the  Courts 65 

The  Statute  Delegates  Legislative  Power 66 

The  Statute  is  Contrary  to  Constitutional  Prohibitions 
Because : 

(1)  It  Creates  Discrimination  Between  Employers 
of  the  Same  Class;  (2)  Between  Employes  of 
the  Same  Class;  (3)  Restricts  the  Liberty  of 
Contract;  and  (4)  Takes  the  Property  of  the 

Employer  for  the  Benefit  of  Others 68 

Conclusion 70 

APPENDIX. 

I.  The  Minnesota  Minimum  Wage  Statute  of  1913 I 

II.  Questions  Propounded  as  to  Minnesota  Statute  By 
Advisory  Board V 

III.  Provisions  of  Minimum  Wage  Statutes  in  other 
States  Summarized  ....  VII 


THE  MINIMUM  WAGE 


With  particular  reference  to  the  Legislative  Minimum 
Wage  under  the  Minnesota  Statute  of  1913. 


By  ROME  G.  BROWN, 
Minneapolis,  Minn. 

SCOPE  OF  THIS  DISCUSSION. 

The  enactment  of  a  minimum  wage  statute  in  Minnesota 
makes  necessary  a  present  and  local  discussion  of  the  minimum 
wage  question.  Such  legislation  necessarily  affects  the  inter- 
est of  all  employers  and  of  all  employes,  which  two  classes  com- 
prise substantially  the  entire  citizenship.  Before  its  attempt- 
ed application  as  a  legislative  measure  in  this  state,  local  inter- 
est in  the  question  was  naturally  confined  to  those  who  hap- 
pened to  interest  themselves  in  its  study  as  a  doctrine  discussed 
by  students  of  ethics,  economics  and  history.  As  is  true  in 
the  case  of  most  reform  measures,  its  advocates  have  been  most 
active,  and,  for  the  reason  that  it  has  been  put  forward  as  a 
social  welfare  measure,  most  persuasive.  Whether  it  be,  in 
fact,  expedient,  from  either  an  economic  or  legal  viewpoint,  it 
is  safe  to  say  that  its  enactment  in  Minnesota,  particularly  in 
the  form  of  the  Act  of  1913,  was  not  due  to  any  well-considered 
or  deliberate  judgment  of  the  legislature  nor  of  any  considera- 
ble number  of  its  members,  and  furthermore  that  it  was  not 
demanded  by  any  stress  of  public  opinion  founded  on  prevalent 
conviction  resulting  from  any  general,  deliberate  consideration 
or  (Study  of  the  merits  or^demerits  of  a  legislative  minimum 
wage.  The  general  mass  of  citizens  of  the  state  first  knew  of 
the  enactment, — and  even  learned  for  the  first  time  that  there 
was  a  minimum  wage  doctrine,  or  at  least  a  doctrine  of  a  leg- 
islative minimum  wage, — when,  after  the  1913  session,  they 
discovered  the  present  statute  among  those  which  had  been 
passed  by  the  legislature. 


2 

The  Minimum  Wage  Commission  authorized  by  that  statute 
has  been  organized,  and  it  is  proposing  to  establish  a  mini- 
mum wage  as  to  certain  occupations,  preparatory  to  enforcing 
the  compulsory  features  of  the  statute.  The  Commission  has 
established  an  Advisory  Board  to  inquire  into  and  to  recom- 
mend a  minimum  wage  for  the  mercantile  occupations  in  the 
cities  of  Minneapolis  and  St.  Paul.  The  first  questions  with 
which  such  Advisory  Board  was  confronted  were  as  to  the  prac- 
tical workability  of  the  statute,  the  power  and  authority  of  such 
Advisory  Board  and  of  the  Commission,  under  the  complex  and 
seemingly  contradictory  statutory  provisions,  to  fix  a  minimum 
wage  for  particular  occupations,  or  for  particular  localities,  or 
for  particular  classes  of  persons,  evidently  intended  to  be  cov- 
ered by  the  statute ;  also,  the  basis  of  computing  such  minimum 
wage  under  varying  circumstances  or  for  different  classes  of 
employes;  also  the  enforcibility  of  the  act.  These  and  other 
questions  must  be  answered  before  proceedings  could  begin ;  and 
the  questions  propounded  to  the  legal  department  of  the  State 
by  that  Advisory  Board  evidenced  the  difficulties  which  were 
encountered  at  the  very  outset.1 

It  may  be  said  that  these  questions  precipitate  local  dis- 
cussion of  the  minimum  wage  in  this  state.  The  immediate 
question  is  the  practicability  of  the  present  Minnesota  statute. 
A  discussion  of  this  question,  however,  leads  to  a  broader  field 
of  discussion;  because  the  practicability  of  a  particular  mini- 
mum wage  statute  cannot  be  well  understood  without  some 
general  understanding  of  the  subject  of  the  minimum  wage  in 
its  general  phases.  Such  general  information  should  be  had  by 
both  classes  of  citizens  affected,  by  both  employers  and  em- 
ployes. It  should  be  had,  too,  by  the  public  as  a  whole,  at  least 
in  its  general  aspects.  The  more  technical  phases  of  the  ques- 
tion, the  economic  and  the  legal  phases,  should  be  carefully 
considered  by  those  upon  whom  the  duty  devolves  to  enforce, 
so  far  as  enforcible,  the  law  stated  in  the  terms  of  the  statute. 

The  primary  object  of  this  discussion,  then,  is  to  present 
the  question  of  the  legislative  minimum  wage  as  proposed  by 
the  present  Minnesota  statute.  But  in  order  to  approach  that 
question  intelligently,  it  is  necessary  to  discuss  briefly  the  gen- 

1  See  Appendix  II. 


eral  question  of  the  minimum  wage,  and  more  particularly  that 
of  the  legislative  minimum  wage. 

It  is  not  within  the  scope  of  this  discussion  to  detail  or  ex- 
amine the  various  theories  of  writers  upon  economics  who  gen- 
erally stand  as  authority  against  the  doctrine  of  a  minimum 
wage.  Their  studies  involve  discussions  of  the  old  and  to  some 
extent  repudiated  doctrine  of  the  wage-fund,  the  doctrine  of  the 
paramount  law  of  supply  and  demand  and  that  theoretical  an- 
tagonism to  any  interference  by  paternal  legislation  with  the 
economic  laws  of  trade,  including  the  relations  between  em- 
ployer and  employe,  denoted  by  the  well-known  economic 
doctrine  of  laissez  faire.  It  is  sufficient  for  the  present 
purposes  to  say,  that  it  is  generally  recognized  that  the 
obstructive  influence  of  these  economic  doctrines  to  practi- 
cal interference  by  the  State  in  the  interests  of  social  welfare, 
is  growing  less  and  less.  Actual  experience  has  shown  that, 
within  certain  defined  limits,  legislative  protection,  theoreti- 
cally inconsistent  with  certain  supposedly  established  economic 
theories,  to  certain  classes  of  citizens  who,  by  reason  of  their 
situation  in  life,  are  less  able  to  protect  themselves,  is  not  only 
feasible,  but  has  been  followed  by  isalutary  results.  The  dog- 
mas, therefore,  of  the  economic  doctrinaires  are  not  necessarily 
controlling  for  the  mere  reason  that  the  practical  application 
of  legislative  protection  presents  conflicts  with  this  or  that 
theory  of  economic  law. 

It  must  be  admitted  that  there  is  a  breaking  down  of  the  full 
force  and  effect  once  theoretically  ascribed  to  certain  stereo- 
typed doctrines  of  the  economists.  This  fact  must  be  recognized 
in  any  helpful  discussion  of  the  subject.  Practical  enlighten- 
ment can  best  come  from  the  comparatively  modern  studies 
which  have  been  presented  as  to  the  practicability  of  the  mini- 
mum wage  as  a  subject  of  legislative  compulsory  enactment, 
These  modern  studies  of  the  subject  have  been  sometimes  by 
those  who  view  the  questions  involved  as  purely  ethical,  and 
who  assume  that  beneficial  results  will  be  accomplished  only 
through  voluntary  co-operation  induced  by  a  higher  regard 
for  moral  duty  and  a  better  appreciation  of  ultimate  benefits, 
effective  only  through  sacrifice  of  selfish  interest  in  behalf 
of  the  welfare  of  others. 


Another  viewpoint  of  discussion  is  that  of  the  purely  scien- 
tific student  who  assumes  the  establishment  of  a  minimum  wage, 
either  by  voluntary  co-operation  or  by  legislative  compulsion, 
and  who,  in  advance  of  its  establishment,  presents  the  possible 
advantages  or  disadvantages  of  its  application  to  either  the 
employer  or  employe,  or  both.  Such  student  views  the  question 
as  one  more  purely  of  economic  law. 

Then  there  is  a  third  phase  of  the  discussion  which  involves 
not  only  questions  of  ethics  and  of  economic  law, — that  is, 
both  the  moral  and  the  scientific  viewpoints, — but  also  ques- 
tions of  constitutional  law.  The  questions  involved  in  this  third 
phase  of  the  discussion  are  at  present  the  most  pressing;  but 
they  cannot  be  intelligently  presented  nor  understood  without 
some  consideration  of  the  ethical  viewpoint  and  particularly 
of  the  economic  questions  necessarily  involved.  Some  consid- 
eration also  is  necessary  to  be  given  to  the  history  of  the  agita- 
tion for  the  minimum  wage. 

Therefore,  before  taking  up  the  legislative  minimum  wage, 
I  will  call  attention  briefly  to  a  consideration  of  the  subject 
of  the  minimum  wage,  first  from  the  ethical  and  next  from  the 
economic  viewpoints. 

THE  MINIMUM  WAGE  AS  AN  ETHICAL  MEASURE. 

It  is  unnecessary  to  discuss  the  advocacy  of  the  minimum 
wage  made  by  that  class  of  social  and  political  antagonists  to 
restraint  from  either  constitutional  or  economic  law  who  rep- 
resent modern  socialist  doctrines.  The  socialist  demands  as  a 
matter  of  fundamental  human  right  the  equal  division  among 
all  citizens  of  the  state  of  an  ownership  or  direct  property  in- 
terest, not  only  of  all  private  and  public  property  within  the 
jurisdiction  of  the  State,  but  also  of  all  profits,  revenue  and 
proceeds  therefrom.  Both  the  theory  and  practice  of  wages 
as  such  are  repudiated  as  a  part  of  a  prevailing  fundamental 
system  of  injustice.  An  orthodox  socialist  could  not,  therefore, 
be  a  consistent  advocate  of  the  minimum  wage.  The  socialist 
spirit  of  compulsory  division,  of  disregard  for  economic  law, 
and  of  defiance  of  constitutional  restraint,  has,  however,  per- 
vaded the  advocacy  of  the  minimum  wage,  in  so  far  as  it  bases 
the  absolute  right  to  a  minimum  wage, — computed  by  the  full 


measure  or  tne  necessities  of  living  in  comfort  and  in  health, 
— upon  the  mere  fact  of  the  existence  of  the  wage  earner,  re- 
gardless of  his  efficiency,  regardless  of  his  wage-earning  ability, 
regardless  of  the  benefits  of  his  labor  to  his  employer,  and  re- 
gardless of  every  other  consideration.  Such  advocacy  of  the 
minimum  wage  is  but  one  phase  of  a  socialistic  attitude,  de- 
manding concessions  and  even  division  of  property  and  income, 
on  the  theory  that  the  fact  alone  of  possessing  life  entitles  its 
possessor  to  share  in  all  other  possessions  or  advantages  held 
by  other  living  beings.  In  justice  to  Father  Ryan,  it  should 
be  borne  in  mind  that  while  he  is  an  extreme  advocate  of  the 
minimum  wage,  particularly  upon  ethical  and  religious  grounds, 
he  is  an  active  antagonist  of  the  socialist  system.2 

In  the  purely  ethical  phases  of  the  question  there  is  little 
field  for  contention;  because  this,  as  any  question  of  ethics, 
involving  the  abstract  question  of  duty,  of  right  and  wrong,  of 
charity,  of  benevolence,  of  sacrifice  for  others,  becomes  from 
its  ethical  viewpoint  more  like  a  question  of  religion.  It  must 
be  solved  in  fact  by  each  individual  or  each  community  of  in- 
dividuals according  to  the  dictates  of  conscience.  The  means 
for  accomplishing  beneficial  results  are  enlightenment  and  mor- 
al suasion,  inducing  so  far  as  possible  voluntary  co-operation 
and  thereby  bringing  promised  benefits  in  proportion  to  the  ex- 
tent of  the  co-operation  secured.  Such  ethical  advocacy  of  the 
minimum  wage  is  based  on  an  assumed  right  of  every  person  to 
have  and  receive  that  certain  amount  of  material  goods  which 
is  sufficient  to  afford  him  a  decent  livelihood;  that  this  right  is 
a  moral  right,  based  on  his  intrinsic  worth  as  a  person ;  and 
that  it  is  a  right  as  valid,  even  if  of  less  importance,  as  his 
right  to  life.  It  is  said  that  the  laborer's  right  to  a  living 
wage  is  but  the  specific  form  of  his  generic  right  so  belonging 
to  every  person.3 

With  such  advocates  the  question  involved  is  one  between  the 
method  of  unrestricted  bargaining  as  to  wages  and  a  "profes- 
sedly ethical  standard."4  Economic  law  is  an  abstract  bogey 

2  See  Debate  on  Socialism  between  Morris  Hillquit  (affirmative)  and  John  A. 
Ryan  (negative)  in  October,  1913,  and  following  numbers  of  Everybody's  Magazine. 

3  "A  Living  Wage,  Its  Ethical  and  Economic  Aspects,"  by  John  A.  Ryan,  pub- 
lished by  McMillan  Co.,  New  York  and  London,  1912,  Chap.  XIX,  page  324. 

4  "A  Living  Wage,"  page  22. 


6 

with  which  the  question  has  no  real  relation,  because  moral 
forces  may  overcome  the  forces  of  economic  law,  and  in  any 
event  the  moral  right  of  the  laborer  is  paramount  to  the  econo- 
mic rights  of  the  employer,  whose  moral  duty  to  his  employe 
is  gauged  by  the  asserted  moral  right  of  the  latter.  "As  a  de- 
terminant of  rights,  economic  force  has  no  more  validity  or 
sacredness  than  physical  force."  The  employer's  right  to  any 
return  on  his  investment  is  subordinate  to  the  laborer's  right 
to  receive  from  him  a  living  wage.5  The  living  wage  doctrine, 
then,  to  this  class  of  advocates,  is  an  ethical  question  and  even 
a  question  of  purely  religious  ethics;  and  the  remedy  to  be 
thereby  accomplished  is  to  be  brought  about  through  moral 
suasion  addressed  to  individuals,  furthered  by  organized  effort. 
"There  must  be  an  appeal  to  the  minds  and  hearts  of  individuals 
and  the  fullest  utilization  of  the  latent  power  of  organization 
and  social  institutions."6 

The  ethical  advocate,  also,  recognizes  no  practical  obstacle 
to  the  establishment  of  a  minimum  wage  arising  from  the  forces 
of  economic  law.  He  casts  aside  such  opposing  forces  as  non- 
existent because  in  practice  they  will  be  found  to  be  actual  only 
in  the  minds  of  the  abstract  economists ;  or,  if  it  transpires  that 
they  are  real,  then  any  disastrous  economic  result  should  be 
submitted  to  because  of  the  paramount  nature  of  the  moral  or 
ethical  law  establishing  the  right  to  the  minimum  wage.  Volun- 
tary recognition  of  this  right  and  co-operation  in  the  establish- 
ing of  the  minimum  wage  should  be  brought  about  by  persua- 
sion and  by  organization.  Compulsory  submission  can  be  only 
brought  about  indirectly  by  influence  and  example.  In  short, 
to  the  ethical  advocate,  the  minimum  wage  can  be  established 
only  to  the  extent  that  voluntary  cooperation  may  be  induced. 
A  preliminary  requisite  to  any  legislative  minimum  wage  would 
be  necessary  changes  in  the  federal  constitution  and  in  the  con- 
stitutions of  the  several  states,  and  these  necessary  changes 
would  be  very  difficult  to  obtain.7 

The  foregoing  summary  of  the  advocacy  of  the  establishment 
of  a  minimum  wage  through  the  general  recognition  of  a  moral 

5  "A  Living  Wage,"  pages  10,  326,  261. 

6  "A  Living  Wage,"  page  34,  page  331. 

7  "A  Living  Wage,"  page  313.     Also  "The  Minimum  Wage  as  a  Legislative 
Proposal  in  the  United  States,"  bv  Prof.  Lindsay,  page  52,  in  Annals  of  American 
Academy  and  Political  and  Social  Science,  July,  1913. 


or  religious  right  or  duty  is  of  more  than  incidental  interest. 
Its  urgency  of  co-operation  as  a  means  of  accomplishing  the 
benefits  to  low-paid  labor  suggests  a  practical  means  of  obtain- 
ing beneficial  results  through  the  minimum  wage.  It  is  evident, 
as  I  shall  show  further  on,  that,  wherever  conditions  have  been 
improved  by  the  establishment  of  a  minimum  wage,  even  in  con- 
nection with  legislative  enactments,  the  compulsory  features  of 
such  enactments  have  not  been  so  much  directly  ameliorative 
of  the  status  of  the  laborers  as  they  have  been  a  moral  and 
practical  assistance  in  encouraging  organized  co-operation.  It 
was  for  that  reason  that  the  first  minimum  wage  statute  adopted 
by  any  of  the  United  States  was  not  made  compulsory  upon  any 
employer.  The  Massachusetts  act  of  1912  makes  the  State 
Wage  Commission  simply  a  board  to  investigate  and  recom- 
mend a  minimum  wage  as  to  any  occupation;  and  while,  even 
then,  the  statute  provides  for  notice  and  hearing  to  the  employ- 
ers to  be  affected,  and  for  review  by  the  courts  of  any  recom- 
mendation made  by  the  Commission,  it  provides -no  penalty. 
It  empowers  the  Commission  to  report  and  to  publish  its  recom- 
mendations with  the  names  of  the  employers  who  do  not  submit 
to  the  recommendation  made.  By  such  statute  the  State  be- 
comes an  additional  means  of  promoting  co-operation,  not  only 
among  employers,  but  between  employers  and  employes  in  rais- 
ing the  wage  of  the  lower  classes  of  labor  to  a  living  wage.  It 
adds  to  the  efforts  for  amelioration  by  purely  individual  ini- 
tiative and  by  privately  organized  co-operation,  the  encourage- 
ment and  assistance  of  investigations  and  recommendations 
made  under  official  authority.  It  naturally  results  in  bringing 
in  line  with  the  employers  of  more  humanitarian  tendencies 
those  who,  from  avarice,  neglect  or  indifference,  would  remain 
inactive  without  some  such  stimulating  incentive.8  The  Massa- 
chusetts example  was  followed  by  Nebraska  in  the  enactment 
of  the  minimum  wage  statute  of  1913  in  that  state.9 

The  minimum  wage  by  voluntary  co-operation,  including  that 
of  the  State  through  non-compulsory  statutes,  is  altogether,  as 
it  must  be  admitted,  a  logical,  workable  measure.  Whether 
we  agree  that  it  is  properly  based  upon  the  natural  and  par- 

8  Massachusetts   Minimum  Wagre   Statute  of  1912,    as  amended  in  1913.     See 
Appendix  III. 

9  See  Appendix  III. 


8 

amount  right  of  a  laborer  to  receive,  and  the  controlling  duty 
of  the  employer  to  provide,  in  all  instances  a  living  wage,  is 
unimportant.  Its  object  is  beneficent;  it  is  humanitarian,  ard 
as  such  its  accomplishment  must  be  recognized  as  desirable,  so 
far  as  any  concrete  beneficial  results  are  not  necessarily  at- 
tained at  the  expense  of  other  resulting  disadvantages  of  greater 
importance. 

The  preservation  of  the  voluntary  element,  however,  is  the 
means  through  which  are  obviated  many  of  ihe  obstacles  to  the 
practical  working  of  a  compulsory  minimum  wage.  Under  the 
system  of  voluntary  co-operation,  employers  cannot  be  driven 
out  of  business;  neither  will  the  prices  of  their  products  be 
increased  so  as  to  deprive  the  recipient  of  a  minimum  wage  of 
its  benefits;  neither  will  the  minimum  wage  tend  so  much  to 
become  the  maximum  wage.  Under  a  system  of  co-operation, 
the  necessary  adjustments,  more  in  accordance  with  the  natural 
economic  law,  will  be  worked  out,  and  thereby  artificial  and 
unfair  discrimination  between  competitors  in  the  same  industry 
will  tend  to  be  obviated. 

The  argument  for  the  voluntary  co-operative  establishment 
of  a  minimum  wage,  whether  as  an  ethical  or  a  humanitarian 
measure,  is  far  from  answering  the  objections  based  upon 
economic  and  constitutional  prormds  to  the  expediencv  or  prac- 
ticability of  a  legislative  minimum  wage. 

THE  MINIMUM  WAGE  AS  AN  ECONOMIC  MEASURE. 

There  are  certain  rules  of  economics  which,  when  formally 
expressed,  are  merely  the  statement  of  certain  natural  laws  of 
industrial  science  and  of  the  science  of  trade  and  commerce. 
Such  economic  laws  are  controlling  in  the  same  way,  even  if 
not  to  the  same  extent,  as  natural  laws  of  physics  are  controll- 
ing in  respect  of  the  phenomena  of  nature  to  which  they  are 
applicable.  Disregard  or  violation  of  such  natural  law,  wheth- 
er it  be  economic  or  physical,  tend  in  all  instances  to  cause,  and 
in  many  instances  inevitably  cause,  disturbance  and  even  dis- 
aster. 

Sometimes  the  disturbance  is  merely  local  or  temporary,  and 
its  effects  may  be  overcome  or  remedied  by  either  natural  or 


9 

artificial  adjustments.  When,  therefore,  a  course  of  action  is 
proposed  which  from  its  very  nature  is  in  conflict  with  natural 
economic  laws,  it  is  wise  to  proceed  with  caution,  lest  the  re- 
sulting disturbance  bring  injurious  effects  greater  than  the 
proposed  or  possible  benefits.  The  solution  of  any  such  ques- 
tion cannot  be  based  solely  upon  the  desires,  necessities  or  the 
resulting  benefits  to  any  particular  individual,  nor,  indeed, 
to  any  particular  class  of  individuals.  There  is  no  system  of 
governmental  or  industrial  organization  or  policy  which  can 
be  so  perfectly  organized  and  administered  that,  with  all  their 
varying  talents,  degrees  of  efficiency  or  of  frailty,  can  act  with 
equal  benefit  to  all  persons;  or  which  even  can  fail  to  leave 
some  individuals  or  some  class  of  individuals  not  only  without 
benefits,  but  with  comparative  disadvantage  resulting  from  the 
system  itself.  The  rule  of  measure  of  merit  is  "the  greatest 
good  to  the  greatest  number."  This  is  a  rule  not  only  of  ethics 
and  of  economic  law,  but  also  of  the  law  of  governmental  and 
legislative  policy. 

Any  artificial  interference  with  the  wages  to  be  paid  to  labor 
in  private  employment  is  an  interference  with  the  natural 
economic  law  of  supply  and  demand.  It  is  also  an  interference 
with  the  natural  economic  law  of  industrial  competition.  This 
is  true  as  to  the  compulsory  establishment  of  a  wage  for  labor, 
whether  the  fixed  wage  be  a  minimum  or  a  maximum.  A  com- 
pulsory minimum  wage,  whether  computed  upon  the  basis  of  a 
sum  adequate  to  provide  a  decent  livelihood  with  reasonable 
comforts,  or  upon  any  other  basis,  has  inevitably  the  tendency, 
to  say  the  least,  and,  it  must  be  admitted,  in  some  cases  it  has 
the  necessary  effect,  to  disturb  the  natural  conditions  governed 
by  the  law  of  supply  and  demand,  by  the  law  of  competition 
and  by  other  economic  laws. 

From  this  fact  there  have  been  urged  with  "reater  or  less 
reason,  and  by  some  as  insuperable,  certain  economic  objec- 
tions to  a  compulsory  minimum  wa^e,  as  presenting  obstacles 
to  its  successful  application  in  the  modern  industrial  world. 
Examination  of  some  of  these  objections  will  throw  light  upon 
the  subsequent  discussion  with  reference  to  the  legislative  mini- 
mum wage  as  applied  in  this  country. 


10 

ECONOMIC  OBJECTIONS  STATED. 

1.  The  first  objection  is,  that  it  necessarily  creates  an  arti- 
ficial discrimination  in  any  occupation  or  industry  to  the  dis- 
advantage of  those  employers  subject  to  the  fixed  wage,  and 
in  favor  of  others  who  are  competitors.  A  federal  minimum 
wage  statute  would  be  impossible  without  changing  our  system 
of  government  and  by  amendment  of  the  Federal  Constitution. 
Such  an  amendment  would  forever  do  away  with  the  well-estab- 
lished principle  that  there  should  be  and  has  been  reserved  to 
the  several  States  all  the  powers  of  self-government  and  of 
legislation  touching  internal  affairs  and  business  and  the  rela- 
tions between  their  citizens  which  are  not  properly  powers  of 
federal  control  and  as  such  expressly  imposed  upon  the  federal 
government.  So  far,  then,  as  concerns  a  minimum  wage,  the 
United  States  comprises  forty-eight  separate,  competing  sover- 
eign countries  with  widely  varying  conditions  of  employment 
and  wage  standards. 

The  market  for  products  of  state  industries,  however,  is  not 
only  nation-wide,  but  world- wide.  In  many  industries  the  mar- 
gin of  profit  is  so  small  that  with  the  slightest  disturbance  of 
their  extra-state  market,  the  industry  could  not  survive.  If 
wages  which  are  now  fixed  by  competition  and  V^  the  law  of 
supply  and  demand  were  artificially  raised  in  one  locality,  the 
competitors  in  other  localities  would  control  the  price  of  com- 
modities and  shut  out  of  business  those  who>se  wage-rate  was 
artificially  kept  above  the  rate  made  by  their  competitors. 

For  the  same  reason  similar  results  within  a  state  would  fol- 
low upon  the  enforcement  of  a  minimum  wage  fixed  for  one  city 
or  locality,  or  for  one  class  of  cities  or  localities,  as  against  a 
different  wage  for  other  localities.  An  artificial  discrimination 
would  be  created  as  to  any  particular  occupation  or  industry 
against  the  localities  with  higher  wage  and  in  favor  of  those 
with  a  lower  one.  Nevertheless,  the  minimum  wage  statute 
generally  contemplates  just  this  sort  of  discrimination  between 
different  localities  in  the  same  state.  The  fact  that  the  cost  of 
living  is  different  in  different  localities  is  not  a  justification 
for  a  lack  of  uniformity  in  the  minimum  wage.  The  employer 


11 

in  the  industries  located  in  the  larger  urban  localities,  while 
at  a  disadvantage  with  the  higher  minimum  wage  based  upon 
the  greater  local  cost  of  living,  has  the  advantage  of  better 
transportation  and  market  facilities;  whereas,  the  employer  in 
the  country,  with  a  less  minimum  wage  than  where  the  cost  of 
living  is  more,  has  the  disadvantage  of  his  less  central  location, 
poorer  transportation  facilities  and  less  advantageous  market. 
The  actual  cost  of  production  does  not  vary  with  the  cost  of 
living  of  the  employe. 

A  state  compulsory  minimum  wage,  therefore,  based  up- 
on the  cost  of  living  necessarily  results  in  artificial  and 
unfair  discrimination.  And  this  is  true,  even  if  fixed  wages  were 
established  for  the  same  industry  or  occupation  throughout  the 
state.  But  the  result  is  even  more  disastrous  when  it  is  proposed, 
as  under  the  present  statute,  to  establish  a  minimum  wage  as 
to  a  certain  occupation  in  one  locality  without  at  the  same  time 
interfering  in  any  way  with  the  wage  in  the  isame  occupation  in 
another  locality. 

The  discrimination  resulting  is  all  the  more  obnoxious  to 
those  industries  in  states  where  the  margin  of  profit  has 
already  been  cut  by  the  establishment  in  practice  of  a  higher 
wage  rate  than  similar  industries  pay  in  other  states.  For 
instance,  Massachusetts  is  near  the  head  of  the  list  of  states 
in  high  wages.  A  still  further  raise  of  wages  there,  by  com- 
pulsion, would  create  against  the  industries  of  that  state  a  dis- 
crimination more  serious  than  it  would  be  in  a  state  having 
already  low  wages.  It  would  be  a  penalty  upon  that  locality 
whose  citizens  by  co-operation  had  raised  the  standard  of  its 
employes.  The  same  effect  would  be  produced  upon  the  indus- 
tries, and  particularly  the  mercantile  houses,  of  St.  Paul  and 
Minneapolis.  While  in  some  instances  the  wages  are  below 
what  they  might  be,  the  mercantile  houses  of  the  Twin  Cities 
are  marketing  their  goods  at  a  higher  per  cent  of  wage  cost  than 
any  other  city  of  their  size  in  the  United  States.  Through  their 
mail  order  departments  they  are  direct  competitors  in  the  same 
industries  with  the  merchants  of  other  large  cities  who  pay  less 
wages. 

Discrimination,  which  is  unfair  and  which  would  tend  to 
become  destructive  of  industry,  is,  therefore,  a  valid  economic 


12 

objection  to  a  compulsory  minimum  wage. 

2.  The  compulsory  minimum  wage  would  also  necessarily 
tend  to,  and  in  many  instances  would,  drive  employers  out  of 
business,  by  destroying  profits  or  by  turning  profits  into  losses. 
This  would  be  the  result  of  the  artificial  discrimination  be- 
tween different  localities,  already  noted.    It  would  also  be  the 
natural  result  even  where  there  was  no  local  discrimination. 
From  varying  conditions  affecting  different  industries,  the  mar- 
gin of  profit  varies  greatly.     Many  employers  are  already  so 
near  the  restrictive  limit  of  profit  that  they  could  not  continue 
if  additional  expense  were  added  by  increasing  wages  by  com- 
pulsion.    We  may  view  such  destruction  of  business  as  econ- 
omically wrong,  and  we  may  view  it  as  resulting  in  the  taking 
of  property  for  the  benefit  of  the  employe  class  without  due 
process  of  law.    The  force  of  both  these  views  is  recognized  by 
the  advocates  of  the  minimum  wage  who  base  the  right  of  the 
employe  to  have  from  his  employer  at  least  a  certain  wage  upon 
the  generic  right  of  the  employe  to  receive,  and  the  correspond- 
ing duty  of  the  employer  to  furnish,  at  least  a  minimum  living 
wage,  and  makes  that  right  of  the  employe  paramount  to  any 
right  of  the  employer.    But,  they  argue,  if  the  result  is  to  "drive 
any  employer  or  any  industry  out  of  existence,  the  tendency 
should  be  welcomed."     The  employer,  individual  or  corporate, 
who  may  be  unable  to  survive,  and  whose  income  from  his  in- 
vestment is  destroyed  by  enforcement  of  the  minimum  wage, 
is  relegated  to  the  class  of  undesirable  citizens  or  of  "soulless 
trades"    whose   extinction,   as   "social   parasites,"    should   be 
hastened.10 

3.  Another  inconsistent  result,  due  to  the  inevitable  work- 
ing of  natural  economic  laws,  is  that  the  general  enforcement 
of  a  minimum  wage  in  any  industry  would  necessarily  result 
in  increase  in  the  price  of  the  product  or  wares  in  the  market. 
Such  rise  in  prices  would  increase  the  necessary  cost  of  living, 
which  cost  is  to  be  the  basis  at  which  the  minimum  wage  is 
maintained.     Experience  has  shown  that  increase  in  price  is 
generally  greater  than  a  proportionate  increase  in  the  expense, 

10  "Minimum  Wage  Legislation,"  by  John  A.  Ryan,  Catholic  World,  February, 
1913.  Also,  Annals  American  Academy  Political  and  Social  Science,  July,  1913: 
"The  Minimum  Wage  as  a  Legislative  Proposal  in  the  United  States,"  by  Prof. 
Lindsay,  page  45. 


13 

by  reason  of  which  prices  are  raised.  The  uncertainty  of 
application  of  the  compulsory  minimum  wage  has  to  be 
guarded  against  and  on  account  of  that  hazard  the  rise 
in  prices  would  naturally  be  greater  than  that  warrant- 
ed at  any  particular  time  by  the  then  arbitrary  increase 
in  expense.  The  resulting  change  in  the  cost  of  living  calls  for 
a  further  increase  in  the  minimum  wage  and  that  in  its  turn 
results  in  a  further  increase  in  the  cost  of  living;  and  so,  at 
least  to  certain  limits,  the  tendency  is  to  establish  a  sort  of 
automatic  lever  acting  at  recurring  intervals  constantly  to- 
wards a  rise  not  only  in  wages,  but  also  in  prices,  with  the 
rise  in  one  direction  counteracting  the  effects  of  tljje  rise  in  the 
other. 

That  this  is  the  necessary  tendency,  and  to  some  extent  the 
inevitable  result,  of  a  compulsory  minimum  wage,  is  admitted 
by  its  advocates.  They  say,  however,  not  without  reason,  that 
the  menace  of  such  an  effect  is  not  as  great  in  practice  as  indi- 
cated by  theory.  The  laboring  class,  much  less  that  portion 
of  it  directly  affected  by  the  minimum  wage,  does  not  constitute 
the  entire  class  of  consumers.  The  effect,  therefore,  on  prices, 
they  say,  would  not  be  to  the  fullest  extent  claimed  by  those 
who  urge  fully  these  economic  objections.  The  distinction  thus 
made  seems  to  be  sound ;  but  in  any  event  it  has  to  be  admitted 
that  the  resulting  tendency  would  be  to  eliminate  the  beneficial 
effect  upon  the  laborer  of  the  minimum  wage  and  to  unsettle 
the  basis  upon  which  such  wage  is  from  time  to  time  computed. 

A  part  of  this  same  objection  is,  that  the  increased  prices 
would,  under  economic  laws,  result  in  decreased  demand  for  the 
product  or  wares  in  question  and  thereby  diminish  production. 
Diminished  production  in  its  turn  is  necessarily  followed  by 
diminished  employment;  and  thus  again  the  artificial  inter- 
ference with  the  natural  law  of  supply  and  demand  would  in 
this  instance  result  in  an  artificial  increase  of  the  number  of 
unemployed ;  thereby  decreasing,  if  not  eliminating,  the  ultimate 
benefits  to  the  laborer  of  a  compulsory  wage. 

4.  Again  it  is  objected  that  the  minimum  wage,  established 
by  compulsion,  while  it  might  raise  the  wages  of  the  lower 
classes  of  labor,  would  at  the  same  time  lower  the  higher  wages 
paid  under  the  present  system  to  the  higher  classes  of  labor. 


14 

In  other  words,  the  minimum  wage  would  tend  to  become  the 
maximum  wage.  This  question  was  much  discussed  during  the 
last  political  campaign  in  connection  with  the  Progressive 
party  platform  for  a  minimum  wage  for  women,  to  be  estab- 
lished by  authority  of  the  states  and  the  federal  government. 
President  Wilson,  in  one  of  his  campaign  arguments,  said  with 
reference  to  this  question : 

"If  a  minimum  wage  were  established  by  law,  the  great 
majority  of  employers  would  take  occasion  to  bring  their 
wage  scale  as  near  as  might  be  down  to  the  level  of  the 
minimum ;  and  it  would  be  very  awkward  for  the  working- 
men  to  resist  that  process  successfully,  because  it  would  be 
dangerous  to  strike  against  the  authority  of  the  federal 
government."11 

The  only  logical  remedy  to  obviate  this  and  many  of  the  ob- 
jections to  the  minimum  wage  would  be  the  impossible  one  of 
establishing  by  law  a  general  minimum  wage  scale  for  all 
classes  of  wage-earners. 

That  the  compulsory  minimum  wage  would  threaten  existing 
trades  union  scales  and  the  present  standard  of  wages  for  all 
classes  of  labor,  has  been  shown  by  the  experience  in  Australia, 
where  the  tendency  is  for  the  established  minimum  wage  soon 
to  become  the  standard  wage  scale.  The  class  of  unthinking 
employes,  as  well  as  their  voluntary  protectors  who  are  appar- 
ently uninformed  of  the  economic  significance  of  a  statutory 
wage,  overlook  this  objection.  The  skilled  students  of  labor 
questions,  including  labor  leaders  of  experience,  agree  that  the 
warning  given  by  President  Wilson  is  well  founded.  The  San 
Francisco  Labor  Council  recently  declared  itself  "opposed  to 
the  principle  of  establishing  the  rate  of  wages,  whether  for  men 
or  women,  by  legislation."  Samuel  Gompers,  President  of  the 
American  Federation  of  Labor,  while  favoring  a  living  wage, 
opposes  a  legislative  or  compulsory  minimum  wage  for  wage 
earners  in  private  employ.  He  says :  "I  recognize  the  danger 
of  such  a  proposition.  The  minimum  wage  would  become  the 
maximum,  from  which  we  should  find  it  necessary  to  depart."12 
Mr.  Gompers  also  has  stated  with  reference  to  the  compulsory 

11  "The  Legal  Minimum  Wage,"  by  James  Boyle,  Forum,  May,  1913. 

12  "The  Legal  Minimum  Wage,"  by  James  Boyle,  Forum,  May,  1913. 


15 

minimum  wage:  "I  fear  an  outcome  that  has  not  been  dis- 
cussed, and  that  is,  that  the  same  law  may  endeavor  to  force 
men  to  work  for  the  minimum  wage  scale,  and  when  government 
compels  men  to  work  for  a  minimum  wage,  that  means 
slavery/'13 

The  objections,  then,  to  the  minimum  wage  are  not  all  from 
the  side  of  the  employer. 

5.  Still  another  objection  which  involves  many  and  varied 
difficulties  is  the  fact  that  the  compulsory  minimum  wage  will 
not  only  throw  out  of  employment  entirely  a  large  class  of 
laborers  dependent  in  whole  or  in  part  upon  their  earnings,  but 
will  maintain  a  barrier  against  the  possible  employment  of  all 
labor  whose  efficiency  is  below  the  standard  of  those  entitled 
to  the  fixed  wage.  The  employer  cannot  be  compelled  to,  and 
he  certainly  will  not  voluntarily  for  any  extended  period,  keep 
in  his  employ  one  whose  efficiency  is  not  up  to  or  does  not 
closely  approach  that  measured  by  the  minimum  wage.  Those 
below  that  standard  would  be  gradually  weeded  out  and  after- 
wards kept  out  of  employment.  Under  the  present  system  those 
receiving  a  less  wage  than  sufficient  by  itself  to  amount  to  a 
full  living  wage  as  defined,  comprise  generally  those  whose 
training,  skill  and  experience  are  insufficient  to  enable  them  to 
give  in  return  a  service  warranting  the  compensation  of  such 
wage.  They  comprise  also  those  who  by  reason  of  indolence 
or  other  peculiar  characteristics,  inaptitude  or  indifference,  can 
never  reach  the  standard  of  accomplishment  measuring  up  to 
the  minimum  wage.  There  are  also  those  who,  by  reason  of 
advanced  years,  fall  below  the  standard  required  for  the  fixed 
wage.  Then  there  are  the  hosts  of  those  to  whom  employment 
in  their  earlier  years  is  the  main  education  and  preparation 
for  the  power  to  earn,  and  whose  employment  for  considerable 
periods  at  merely  nominal  or  at  comparatively  low  wages  pro- 
vides for  them  the  means,  or  assists  them  in  the  means,  of  sus- 
taining life  while  in  the  preparatory  stages  for  their  later  work. 
Excluded  altogether  from  employment  by  reason  of  the  mini- 
mum wage,  they  would  be  compelled  at  their  own  expense  of 
time  and  money  to  school  themselves  to  the  point  of  efficiency 

13  E.  F.  McSweeney,  in  American  Labor  Legislation  Review,  February,  1913. 


16 

measured  by  that  wage.  These  and  other  classes  would  be 
barred  from  any  wage-earning  opportunity,  some  of  them  per- 
manently and  some  of  them  for  long  periods  of  time ;  and  this 
deprivation  of  advantage  would  be  accompanied  by  the  burdens 
of  preparation  now  shared  between  the  employer  and  the  em- 
ploye. 

It  is  true  that  the  legislative  minimum  wage  generally  con- 
templates exceptions  in  favor  of  the  weak,  the  aged,  or  those 
otherwise  physically  incapacitated.  The  scheme  does  not,  how- 
ever, provide  in  any  way  for  the  great  mass  of  the  unemplo3red 
which  will  be  created  and  increased  by  its  adoption.  For  this 
reason  alone  the  results  must  be  disastrous,  at  least  until  the 
same  paternal  government  which  has  provided  the  minimum 
wage  shall  have  provided  for  those  who  are  thereby  subjected 
to  disadvantage  and  even  to  disaster.  At  the  same  time  that 
the  slow  or  inefficient  or  infirm  worker  is  driven  out  of  indus- 
try altogether  into  want  and  even  pauperism,  with  the  conse- 
quent deprivation  not  only  to  himself  but  to  those  dependent 
or  partially  dependent  upon  him,  neither  he  nor  those  of  his 
class  can  in  this  country  ever  look  to  a  gradual  betterment  of 
their  condition.  The  immigration  of  the  lower  class  workers 
from  Europe  will  continue  to  swell  the  hordes  of  the  unem- 
ployed in  this  country.  The  arbitrary  law  of  compulsory  mini- 
mum wage,  violating  the  law  of  supply  and  demand,  will  have 
the  effect,  as  to  every  class  of  labor  for  whose  benefit  it  is  pro- 
posed, to  decrease  the  demand  at  the  same  time  that  it  multi- 
plies the  supply.  The  inevitable  result  must  be  such  a  lack  of 
balance  and  adjustment  in  the  social  and  political  forces  of 
the  nation  that  catastrophe  will  follow.  No  remedy  or  preven- 
tion for  the  result  of  the  over-strain  of  natural  forces  will  be 
found. 


PREREQUISITES  TO  A  LEGISLATIVE  MINIMUM  WAGE, 

Too  many  advocates  of  the  minimum  wage  assume  that  it  lies 
within  the  power  of  the  State,  through  its  legislature,  to  furnish 
a  panacea  for  all  evils  experienced  under  the  present  wage  sys- 
tem. They  and  their  proposed  beneficiaries  assume  that,  once 


17 

the  Government  fiat  has  been  issued  in  legislative  form,  then 
immediate  relief  for  all  the  lower  classes  of  labor  will  come 
in  the  form  of  wages  sufficient  to  maintain  them  in  health  and 
comfort.  They  do  not  consider,  and  if  they  do  they  blindly 
disregard,  the  inevitable  workings  of  the  natural  law  of  econo- 
mics which  from  its  very  nature  will  not  of  necessity  yield  to 
statutory  law.  There  are  certain  laws  of  nature,  economic  as 
well  as  physical,  which  are  and  will  remain  paramount  to 
human,  statute  law.  They  are  Nature's  limitations  upon  the 
legislative  power  of  man,  and  as  such  they  are  paramount  law, 
without  being  subject  to  amendment,  even  more  controlling  than 
the  written  prohibitions  of  our  Federal  Constitution  are  control- 
ling upon  the  legislative  power  of  the  federal  and  state  legisla- 
tures. Any  state  which  sets  up  an  artificial  standard  repugant 
to  economic  law  must,  if  it  hopes  ever  to  establish  and  enforce 
such  standard,  provide  in  advance  for  the  necessary  readjust- 
ments inexorably  demanded  by  the  natural  law  which  is  in- 
fringed, and  for  the  remedies  of  evils  incident  to  the  displace- 
ments resulting  from  natural  forces. 

The  resulting  evils  of  the  enforcement  of  a  compulsory  wage 
standard,  due  to  economic  laws,  have  just  been  pointed  out. 
They  suggest  the  protective  provisions  desired  and  measures 
for  which,  so  far  as  the  State  has  the  power,  it  would  be  the 
duty  of  the  State  to  provide.  The  army  of  workers,  male  and 
female,  with  their  families  dependent  upon  them,  who  suf- 
fer from  old  age  or  from  other  misfortunes  to  which  wage 
earners  are  liable  and  against  which  they  have  not  them- 
selves been  able  to  make  adequate  provision,  including  those 
who  by  the  minimum  wage  are  relegated,  perhaps  forever,  to 
the  class  of  the  unemployed,  should  be  insured  in  some  way  by 
the  State  against  the  disasters  of  such  misfortunes.  Such  in- 
surance may  include  (1)  an  adequate  system  of  workmen's 
casualty  compensation;  (2)  organized  illness  insurance,  co- 
operative or  obligatory  to  the  extent  of  the  legislative  power  of 
the  State,  including  invalidity  and  old  age  benefits. 

One  of  the  greatest  needs  for  preliminary  measures  would 
be  (3)  providing  for  the  misfortune  of  non-employment, 
through  official  and  thoroughly  organized  employment  ex- 
changes, with  bureaus  collecting  and  reporting  data  with  refer- 


18 

ence  to  the  employment  needs  of  the  different  occupations  and 
the  number  and  locality  of  various  classes  of  employes.  Such 
organized  efforts  in  behalf  of  labor  have  been  established  in 
England,  including  even  insurance  against  unemployment 
made  obligatory  upon  a  large  class  of  employes  and  industries. 

The  next  of  the  most  important  reforms  to  accompany  or  to 
precede  minimum  wage  statutes  should  be  (4)  a  comprehensive 
system  in  industrial  trade  education  and  for  vocational  guid- 
ance. These  should  be  made  not  only  a  part  of  the  public  school 
system,  but  should  be  made  the  subject  of  special  schools  open 
to  all  present  and  prospective  wage  earners.  By  such  means 
may  be  acquired,  with  less  loss  to  the  worker,  that  efficiency 
which  shall  measure  up  to  the  standard  of  the  established  mini- 
mum wage.  The  State  has  no  right  to  bar  from  employment 
the  worker  of  less  than  ordinary  ability,  or  to  deprive  him  of 
paying  for  his  tuition  by  a  diminution  of  his  wages  through 
his  preparatory  period,  as  would  be  done  by  the  compulsory 
minimum  wage  law,  without  providing,  to  some  degree,  at  least, 
a  substitute  for  the  advantages  of  which  he  is  deprived. 

Incidentally,  also,  (5)  should  be  the  enactment  and  enforce- 
ment of  proper  eugenic  laws,  in  order  to  diminish  the  perpetua- 
tion of  defective  traits,  physical  or  moral.  Next  ( 6 )  should  be 
retained,  and  if  necessary,  extended  in  scope,  the  present  sys- 
tem, so  far  as  proper,  of  protective  labor  laws  limiting  the  age 
of  children  workers,  and  protecting  not  only  children  but  also 
women  and  men  as  to  hours  of  employment  in  dangerous  or 
unhealthy  occupations  and  as  to  sanitary  and  healthful  con- 
ditions in  all  occupations.  These  are  all  necessary  to  promote 
efficiency  and  to  diminish  the  tendency  of  the  minimum  wage 
law  to  increase  the  number  of  unemployed.14 

But  of  primary  importance  as  a  preliminary  remedial  meas- 
ure ( 7 ) ,  there  must  be  more  effective  and  more  stringent  restric- 
tions upon  immigration.  All  other  reforms  for  the  advance- 
ment of  the  employe  and  for  the  care  of  the  unemployed  will 
be  worse  than  futile,  while  the  gates  at  Ellis  Island  pour  into 
this  country  a  constantly  arriving  horde  of  the  lower  class  of 
wage  earners  from  Europe  and  other  foreign  countries.  So 


14  Annals  American  Academy  Political  and  Social  Science,  July,  1913,  page 
3;  "The  Minimum  Wage  as  Part  of  the  Program  for  Social  Reform,"  by  Henry 
R.  Seager,  Professor  of  Political  Economy,  Columbia  University. 


19 

long  as  the  army  of  the  unemployed  and  of  the  incompetent  is 
recruited  through  the  present  unrestricted  immigration,  the 
evil  results,  due  to  economic  laws,  of  compulsory  minimum 
wage  will  be  increased  and  intensified.  More  than  that,  all 
attempts  at  remedies  or  readjustments,  whether  by  the  State 
or  by  organized  co-operative  effort,  will  be  rendered  futile.15 

When  these  reforms  are  set  in  motion  and  made  effective,  and 
only  then,  would  it  be  possible  to  expect  any  substantial  benefits 
from  a  compulsory  legislative  minimum  wage.  These  consid- 
erations are  entirely  apart  from  the  question  of  the  practica- 
bility of  any  particular  minimum  wage  statute,  or  of  the  con- 
stitutional power  of  the  legislature  to  pass  and  have  enforced 
any  particular  statute,  or  a  minimum  wage  statute  at  all. 

THE  EFFICACY  OF  PROMOTING  CO-OPERATION. 

To  these  objections  upon  economic  grounds  above  enumerated 
might  be  added  many  others  which  have  been  urged;  but  these 
are  sufficient  to  show  that  the  advisability  of  a  compulsory 
minimum  wage,  though  based  upon  a  living  wage,  is  not  a  self- 
evident  or  self-supporting  fact.  The  questions  involved  are  far- 
reaching.  The  objections  shown  by  a  consideration  of  natural 
economic  laws  are  serious  questions,  to  say  the  least.  They 
must  be  answered  satisfactorily  before  it  is  demonstrated  that 
a  compulsory  minimum  wage  is  either  a  practicable  or  wise 
policy.  The  economic  objections  do  not  apply  to  the  same 
extent  to  a  non-compulsory  minimum  wage, — that  is,  one  which 
is  worked  out  by  individual  and  organized  co-operation,  or 
where  even  under  a  legislative  minimum  wage  the  practical 
effect  is  only  to  promote  voluntary  co-operation, — as  they  do 
to  a  compulsory  wage  in  the  United  States.  The  success 
claimed  for  the  minimum  wage  in  New  Zealand  and  Australia 
is  not  at  all  a  conclusive  answer.  It  has  been  in  operation 
there  only  during  times  of  prosperity.  It  must  be  considered 
an  experiment  until  it  is  demonstrated  that  such  laws  can 
stand  the  stress  of  adversity.  Neither  has  its  success  been 
demonstrated  by  the  experience  in  Great  Britain,  where  the 

15  Annals  American  Academy  Political  and  Social  Science,  July,  1913,  page  66: 
"Immigration  and  the  Minimum  Wage,"  by  Paul  U.  Kellogg,  Editor  of  The  Survey. 


20 

minimum  wage  has  been  applied  only  to  a  few  sweated  indus- 
tries and  also  to  workers  in  mines.  The  British  expert,  Mr. 
Ernest  Aves,  after  a  thorough  investigation  in  Australasia,  re- 
ported to  his  government  as  follows : 

"The  evidence  does  not  seem  to  justify  the  conclusion 
that  it  would  be  advantageous  to  make  the  recommenda- 
tions of  any  special  Boards  that  may  be  constituted  in  this 
country  legally  binding,  or  that  if  this  power  were  granted 
it  could,  with  regard  to  wages,  be  effectively  exercised."16 

How  much  more  difficult,  then,  would  it  be  in  this  country, 
where  the  statutes  of  its  legislatures  are  not  at  the  same  time 
the  fundamental  constitutional  law.  The  question  before  the 
British  Parliament  as  to  a  minimum  wage  statute  was  alone 
a  question  of  policy  or  expediency.  In  this  country  the  same 
question  is  involved  and  always  at  the  same  time  the  question 
of  consistency  with  our  system  of  government,  expressly  lim- 
iting legislative  powers  of  the  states  or  of  the  nation  as  against 
infringements  of  the  right  of  contract,  of  personal  liberty,  and 
of  the  preservation  of  property  rights. 

Another  reason,  as  stated  by  Mr.  Aves,  for  the  inapplicability 
of  the  experiment,  as  applied  in  New  Zealand  or  in  Australia, 
to  a  country  like  Great  Britain  or  the  United  States,  is  the 
fact  that  there  only  a  comparatively  small  number  of  workers 
have  been  or  were  intended  to  be  affected  by  the  minimum  wage. 
So  small  is  their  number,  he  says,  that  it  is  "as  though  the 
whole  machinery  of  propaganda  and  of  the  government  were 
concentrated  on  a  city  somewhat  smaller  than  Birmingham."17 

Mr.  Aves  says,  too,  referring  to  results  in  New  Zealand  and 
Australia,  that  under  the  minimum  wage  law  men  find  great 
difficulty  in  retaining  situations  when  they  pass  middle  age; 
and  it  becomes  harder  for  the  slow  or  inefficient  worker  to  get 
a  job,  as  the  employers  will  not  pay  them  the  legal  wage.  Re- 
ferring to  the  system  in  Victoria,  the  Massachusetts  Commis- 
sion on  Minimum  Wage  Boards  says  that : 

"These  special  boards,  although  authorized  to  secure  a 
'living  wage,'  in  practice  have  served  rather  to  formulate 
common  rules  for  a  trade,  to  bring  employes  and  employ- 

16  "The  Legal  Minimum  Wage,"  by  James  Boyle,  Forum,  May,  1913. 

17  "The  Legal  Minimum  Wage,"  by  James  Boyle,  Forum,  May,  1913. 


21 


ers  into  co-operative  rules  and  to  provide  suitable  ma- 
chinery for  the  readjustment  of  wages  and  other  matters 
to  changing  economic  conditions."18 

The  system  as  so  administered  is  not  considered  antagonistic 
by  either  the  propertied  interests  or  the  employer. 

Thus  far,  therefore,  so  far  as  the  practical  application  of  the 
compulsory  minimum  wage  is  concerned,  any  practical  benefi- 
cial effects  have  been,  not  through  the  enforcement  of  its  com- 
pulsory features,  but  by  reason  of  the  official  promotion  of  co- 
operation between  employers  in  raising  the  standard  of  wages. 


VOLUNTARY  AID  BY  EMPLOYERS. 

In  connection  with  the  subject  of  minimum  wage  by  volun- 
tary co-operation,  and  as  preliminary  to  a  discussion  directly 
addressed  to  the  legislative  minimum  wage,  let  us  consider  the 
present  attitude  of  employers,  and  particularly  those  who 
would  be  first  affected  in  Minnesota,  with  reference  to  benefits, 
by  means  of  increased  wages  and  in  other  ways,  to  their  em- 
ployes. 

The  first  proceeding  of  the  Minnesota  Commission  to  estab- 
lish a  minimum  wage  was  taken  with  reference  to  the  employes 
in  the  mercantile  houses,  particularly  the  department  stores, 
of  the  two  cities,  Minneapolis  and  St.  Paul.  The  nature  of  the 
retail  mercantile  business  requires  classes  of  labor  varying  most 
widely  in  the  demands  for  ability.  Organization  of  such  a 
business  necessitates  the  employment  on  the  one  hand  of  high- 
salaried  experts  from  the  managing  head  to  the  sub-managers 
and  overseers,  and  on  the  other  hand  of  a  class  of  help  of  whom 
little  or  no  experience  or  preparation  is  required,  together  with 
all  the  intermediate  classes.  On  account  of  the  low  standard  of 
proficiency  required  in  the  primary  departments,  the  positions 
are  sought  by  minors,  particularly  young  girls,  who,  forsaking 
the  advantages  of  the  public  free  school  system,  seek  to  become 

18  See  Report  Massachusetts  Commission  on  Minimum  Wage  Boards,  January, 
1912,  pages  14-15;  "The  Principle  of  the  Minimum  Wage,"  by  A.  C.  Pijou,  Nine- 
teenth Century,  March,  1913;  "Minimum  Wage  and  Its  Consequences,"  by  Sidney 
Brooks,  The  Living  Age,  May  11,  1912;  "The  Economic  Theory  of  a  Legal  Minimum 
Wage,"  by  Sidney  Webb,  the  Journal  of  Political  Economy,  December,  1912; 
"Massachusetts  and  the  Minimum  Wage,"  by  H.  LaRue  Brown,  Chairman  of 
Massachusetts  Minimum  Wage  Commission,  Annals  Academy  Political  and  Social 
Science,  July,  1913,  page  13,  16,  17. 


22 

in  some  measure  an  asset  instead  of  a  charge  upon  their  parents 
at  home.  Some  of  them  would  be  unable  to  earn  or  to  receive  a 
minimum  wage  based  even  upon  a  mere  living  wage.  At  the 
lower  wage,  however,  they  are  able  to  help  sustain  themselves 
and  at  the  same  time,  by  actual  training,  to  add  to  their  effi- 
ciency and  their  ability  later  to  earn  and  to  receive  higher 
wages.  Among  the  regular  and  more  experienced  employes, 
generally  women,  who  attend  to  the  retail  sales,  opportunities 
for  advancement  in  position  and  in  wages  are  always  open. 
The  more  attentive  and  serious  advance,  while  the  positions 
of  the  careless  and  indifferent  ones  remain  at  a  standstill  unless 
they  are  compelled  to  drop  out  altogether.  Primarily  it  is  the 
law  of  supply  and  demand  which  governs  not  only  the  obtain- 
ing, but  also  the  retention  of  their  positions,  including  the 
wages  which  they  receive.  Under  the  present  system  it  gen- 
erally depends  upon  the  girl  herself  whether  she  advances  in 
proficiency  and  in  wage-earning  capacity.  In  most  instances 
her  efforts  for  advancement  are  promoted  and  encouraged  by 
the  assistance  of  her  employer,  who  recognizes  the  fact  that 
it  is  for  his  interest  to  raise  in  his  establishment  the  standard 
of  efficiency,  to  promote  the  health,  happiness  and  well-being 
of  his  employes,  and  to  raise  them  as  fast  as  possible,  not  only 
to  the  standard  of  a  minimum  living  wage,  but  as  much  further 
as  possible. 

It  is  not  true  as  to  the  mercantile  establishments  of  Minne- 
sota, and  particularly  of  the  Twin  Cities,  that  there  is  generally 
any  inconsiderate  or  illiberal  treatment  of  the  lower-paid  classes 
of  employes.  None  of  the  retail  merchants  of  the  Twin  Cities 
are  opposed  to  a  minimum  wage  as  such.  Neither  are  they 
opposed  to  any  workable,  practicable  method,  whether  compul- 
sory or  otherwise,  for  raising  the  standard  of  wages,  even  by 
a  legislative  minimum  wage,  if  only  they  may  be  assured  that 
it  will  work  out  as  a  practical  benefit  to  their  employes  and 
at  the  same  time  not  create  insurmountable  obstacles  to  the 
continuance  of  their  business  enterprises.  They  stand  without 
exception  for  the  promotion  of  the  health,  happiness,  morals, 
comfortable  living  and  general  prosperity  of  their  employes. 
When,  however,  they  are  asked  to  submit  to  a  proposed  recom- 
mendation of  a  statutory  wage  commission  that  they,  or  certain 


23 

of  them  in  this  particular  locality,  shall  pay  to  each  and  all 
their  employes  without  exception  not  less  than  an  arbitrarily 
fixed  sum,  they  naturally  inquire,  whether,  under  the  workings 
of  the  statute  in  question,  they  are  to  be  singled  out  as  against 
competitors  in  the  same  line  of  business,  or  are  to  be  affected 
in  equal  degree  so  that  artificial  barriers  will  not  be  created 
against  their  otherwise  free  competition.  In  other  words,  they 
join  in  the  very  reasonable  inquiry:  Is  the  statute,  to  which 
they  are  asked  to  submit,  a  workable  or  enforcible  law? 

The  answers  to  such  inquiries  will  be  suggested  later  in  this 
discussion;  but  right  here  let  me  emphasize  the  fact  of  the 
good  faith  of  such  employers  in  hesitating  to  co-operate  at 
once  in  the  absence  of  satisfactory  answers  to  such  inquiries. 
The  retail  merchants  of  no  locality  have  done  more  to  demon- 
strate a  spirit  of  co-operation  in  the  welfare  of  their  employes 
than  have  the  merchants  of  the  Twin  Cities.  It  is  not  uncom- 
mon that  in  a  department  store  a  well-organized  school  of  in- 
struction is  maintained,  not  only  free  of  expense  to  the  employe, 
but  with  the  privilege  of  attendance  upon  time  paid  by  the 
employer.  To  these,  in  many  instances,  is  added  the  feature 
of  special  lectures  by  experts  in  the  different  branches  of  the 
business.  Then  there  are  sanitary  and  well-fitted  rest  rooms 
where  the  girls  may  obtain  temporary  refuge  and  rest  from 
the  exactions  and  turmoil  of  their  daily  work.  This  is  only  a 
part  of  the  benefit  from  well-organized  welfare  departments 
operated  under  competent  supervision  and  through  which  close 
personal  contact  is  maintained  with  the  employe,  not  only  in 
connection  with  her  work,  but  outside,  and  even  extending  to 
her  domestic  life. 

A  common  source  of  help  is  the  maintenance  by  the  employer 
of  a  mutual  benefit  plan,  by  which  the  employe  receives  aid 
in  times  of  sickness;  death  benefits  are  also  included.  Beside 
contributions  by  the  employes,  the  employer  often  adds  to  the 
benefits  by  voluntary  contributions.  The  higher  class  of  help 
who  are  more  able  to  take  advantage  of  such  opportunities  are, 
by  many  employers,  allowed  to  purchase  an  interest  in  the 
business,  paying  on  time.  Encouragement  to  thrift  is  also 
given  to  the  lower  paid  employes  through  deposit  departments, 
where  savings  deposited  draw  the  full  legal  rate  of  interest. 


24 

In  some  instances  the  employer  has  further  encouraged  sav- 
ings by  starting  an  employe's  savings  accounts  out  of  his  own 
funds.  One  Minneapolis  mercantile  house  has  established  in 
the  heart  of  the  city  a  lodging  house,  where  otherwise  homeless 
girls  may  have  for  extended  periods  of  time  a  home  with  all 
reasonable  comforts  and  at  only  a  nominal  expense — indeed, 
at  an  expense  much  less  than  the  actual  cost  to  the  employer. 
No  single  enterprise  could  be  more  conducive  to  the  preserva- 
tion of  the  morals,  health  and  comfort  of  the  <nrl  wage-earners 
who  have  not  at  hand  the  ordinary  home  comforts.  The 
same  employer  recognizes  the  salutary  effects  of  wholesome  va- 
cation periods  which  to  the  low-wage  earner  are  only  inade- 
quately available;  and  he  plans  to  construct  a  little  colony  of 
cottages  upon  the  lake  shore  in  the  country  for  the  exclusive 
use  of  employes  upon  their  summer  vacations.  These  oppor- 
tunities will  be  afforded  for  less  than  cost  and  at  a  price  within 
the  reach  of  the  lowest  wage  earner. 

A  comparison  of  the  wage-cost  percentage  of  sales  in  the 
business  of  mercantile  houses  throughout  the  country  shows 
that  such  percentage  is  one-quarter  greater  in  Minneapolis  and 
St.  Paul  than  in  any  other  cities  of  their  size.  This  is  a  further 
proof  of  the  already  existing  co-operative  interest  on  the  part 
of  the  employers  in  mercantile  houses  in  the  Twin  Cities  in 
behalf  of  their  employes. 

In  the  light  of  the  foregoing,  let  us  now  examine  the  minimum 
wage  as  a  subject  not  merely  of  ethics  or  of  economic  law,  but 
of  legislative  enactment. 

THE  LEGISLATIVE  MINIMUM  WAGE. 

As  we  have  already  seen,  the  tendency  is  that  any  evil  effects 
through  the  establishment  of  a  minimum  wage,  due  to  the  con- 
sequent strain  or  violation  of  natural  economic  laws,  are  ex- 
perienced to  the  degree  that  such  strain  is  enforced  and  made 
inelastic  by  compulsion.  Voluntary  or  co-operative  establish- 
ment and  maintenance  of  a  minimum  wage  leave  opportunity 
and  means  for  necessary  adjustments  and  readjustments  by 
which  the  evil  results,  otherwise  following  from  defiance  of 
natural  law,  may  be  remedied  in  whole  or  in  part. 


25 

Two  classes  of  inquiry  confront  the  legislator  who  has  to 
determine  the  policy  of  a  minimum  wage  statute.  His  first 
inquiry  is  as  to  the  general  expediency  of  such  a  law ;  and  such 
inquiry  involves  not  only  the  ethical  questions,  but  particularly 
the  questions  of  economic  law.  Outside  of  the  question  of  con- 
stitutionality:  Is  the  statute  as  framed  workable?  Is  it  ex- 
pedient? Will  it  work  out  in  practical  results  beneficial  to  the 
greatest  number?  Will  it  be  ultimately  to  the  advantage  of  the 
particular  employe  class  for  whose  benefit  it  is  proposed?  If 
so,  will  such  benefits  be  counter-balanced  by  greater  harm  to 
the  employer  class  or  to  other  classes,  either  the  employes  or 
the  general  public?  Next,  as  in  the  case  of  all  statutes  contem- 
plating the  restriction  of  the  liberty  of  contract,  or  compelling 
one  citizen  or  one  class  of  citizens  to  sacrifice  something  of  their 
property  or  earnings  for  the  benefit  of  another  class,  or  inter- 
fering with  the  natural  laws  of  competition,  the  question  pre- 
sented to  a  legislator  is :  Whether  the  police  power  of  the  State 
gives  to  its  legislature  under  the  existing  circumstances  the 
right  to  enact  and  have  enforced  a  statute  which  in  its  practi- 
cal workings  must  have,  to  some  degree  at  least,  the  disadvant- 
tageous  results  suggested? 

The  experience  with  legislative  minimum  wage  has  been  so 
slight  that,  as  stated  by  Mr.  Aves,  the  British  expert  who  made 
investigations  in  Australia,  it  can  as  yet  be  considered  no  more 
than  as  mere  experiment.  It  is,  therefore,  manifestly  unwise 
to  fly  in  the  face  of  experience,  or  rather  in  the  face  of  inex- 
perience, to  the  adoption  of  a  measure  drastic  and  far-reaching 
in  its  effects.  Moreover,  if  the  minimum  wage  is  to  be  the  sub- 
ject of  legislative  enactment,  the  particular  methods  of  legis- 
lative supervision  in  the  proposed  statute  should  be  carefully 
scrutinized  in  order  that  any  proposed  method  of  the  applica- 
tion of  the  legislative  minimum  wage  may  not  be  objectionable 
as  against  another  which  might  be  acceptable. 

MINIMUM  WAGE  LEGISLATION  IN  THE  UNITED  STATES. 

So  it  is  that  we  find  that  in  the  United  States  the  methods 
contemplated  by  the  different  statutes  vary  from  the  voluntary 
legislative  minimum  wage  in  Massachusetts  to  the  arbitrary 
statutory  wage  established  without  investigation  by  the  legisla- 


26 

ture  of  Utah.  The  people  of  Massachusetts,  through  their  leg- 
islature, approached  this  question  in  a  judicial  attitude,  but 
with  the  utmost  caution.  Their  conservatism  did  not  spring 
from  the  prejudice  of  the  propertied  interests,  but  rather  from 
the  consciousness  of  an  enlightened  citizenship  which  recog- 
nized, after  deliberate  consideration  and  study,  the  difficulties 
presented  by  reason  of  the  inevitable  effects  of  natural  economic 
law.  They  chose  the  method  in  the  application  of  which  the 
obstacles  presented  by  the  natural  laws  of  business  and  of  com- 
petition would  be  the  most  minimized.  This,  too,  was  only  after 
a  state  commission  under  the  legislative  resolution  of  1911  had 
spent  a  year  in  careful  investigation  followed  by  a  full  report  of 
its  findings  and  recommendations.19  Following  this  report,  the 
Massachusetts  legislature  of  1912  adopted  a  non-compulsory 
act  which  provided  for  investigation  and  recommendation  by  a 
Commission  of  a  minimum  wage  for  women  and  minors,  and 
with  power  to  publish  their  recommendations  and  the  names 
of  employers  not  submitting  thereto.  But  even  such  pow- 
er of  publication  could  not  exist  until  after  full  hear- 
ing and  adjudication  upon  notice  to  the  employer  and 
with  privilege  to  the  employer  to  appeal  to  the  courts  to 
have  adjudicated  the  question  as  to  whether  the  mini- 
mum wage  rate  imposed  upon  him  was,  under  all  the  cir- 
cumstances, fair  and  reasonable.20  That  act  recognized  the  fact 
that  the  principal  efficacy  of  legislation  is  the  promotion  of  co- 
operation in  the  effort  to  raise  wages,  and  that  a  drastic  com- 
pulsory act  would  result,  not  only  in  consternation  among  em- 
ployers, but  also  in  discrimination  and  even  in  disaster  to  busi- 
ness, at  the  same  time  that  it  prevented  the  necessary 
readjustments  which  only  co-operation  would  be  adequate  to 
bring  about. 

The  Nebraska  statute  of  1913  follows  substantially  that  of 
Massachusetts.21  Compulsory  acts  with  penalties  for  refusal  to 
comply  with  the  order  of  the  State  Commission  fixing  the  mini- 
mum wage,  were  passed  by  the  legislatures  of  1913  in  Ore- 
gon, Washington,  Colorado,  Wisconsin  and  Minnesota.  Also  in 
California,  together  with  a  proposal  for  the  adoption  of  a  con- 
in  5ep°™  1912  Massachusetts  Commission  on  Minimum  Wage  Boards. 

20  See  Massachusetts  Statute.  Appendix  III. 

21  See  Appendix  III. 


27 

stitutional  amendment  authorizing  a  compulsory  legislative 
minimum  wage.  In  Ohio  in  1912  there  was  adopted  a  consti- 
tutional amendment  authorizing  laws  establishing  a  minimum 
wage.  In  Utah  the  Wage  Commission  feature  of  other  state 
statutes  is  entirely  eliminated,  and  the  1913  legislature  passed 
a  statute  making  it  unlawful  to  employ  females  at  less  than  a 
specified  rate  for  minors,  another  specified  rate  for  adult  learn- 
ers and  apprentices,  and  another  specified  rate  for  experienced 
adults.  There  is  no  distinction  between  different  classes  of  em- 
ployments, and  a  breach  of  the  law  by  any  regular  employer  is 
made  a  misdemeanor. 

These  acts  are  generally  made  applicable  to  women  and  mi- 
nor employes,  and  the  basis  for  computing  the  minimum  wage 
for  any  employe  or  class  of  employes  in  any  occupation  is  that 
it  shall  be  adequate  to  furnish  them  a  living  with  reasonable 
comforts.  Most  statutes  are  made  ostensibly  under  an  assumed 
police  power  of  the  state  to  protect,  through  the  minimum  wage, 
the  health  and  morals  of  the  employes  affected.  They  generally 
provide  for  a  hearing  upon  notice  to  the  employer  before  the  fin- 
al order  of  the  Commission  is  promulgated  fixing  the  minimum 
wage  applicable  to  such  employer,  and  with  the  right  of  appeal 
to  the  courts  in  case  such  final  order  shall  be  unsatisfactory. 
The  absence  from  the  Minnesota  statute  of  that  usual  protection 
to  the  employer  is,  as  will  be  shown  later,  one  of  the  peculiari- 
ties which  make  that  statute  particularly  open  to  objection. 

A  summary  of  the  minimum  wage  statutes  adopted  in  the 
United  States  up  to  the  present  time  is  given  in  the  Appendix.22 
The  Minnesota  statute  of  1913  is  shown  in  full.23 

MINIMUM  WAGE  STATUTES  IN  OTHER  COUNTRIES. 

The  legislative  wage  is  not  a  new  idea.  It  appeared  first  in 
the  form  of  a  maximum  agricultural  wage  at  several  periods 
in  the  early  history  of  England.  These  maximum  wage  stat- 
utes were  the  outcrop  of  the  oppression  of  the  lower  classes, 
and  particularly  laborers,  and  in  favor  of  the  landed  interests, 
which  was  indulged  in  from  time  to  time  by  Parliaments  not 
sufficiently  representative  of  the  common  people.  They  were 

22  See  Appendix  III. 

23  See  Appendix  I. 


28 

of  the  same  unscientific  class  as  statutes  regulating  the  prices 
of  land,  of  flour,  of  fuel,  and  of  other  necessaries  of  life.  These 
odious  statutes  of  labor,  in  the  time  of  Henry  VI  and  Edward 
III  prohibited  the  laboring  man  from  seeking  employment  out- 
side of  his  own  country,  compelled  him  to  work  for  the  first  em- 
ployer demanding  his  service,  and  punished  him  for  any  viola- 
tion. Referring  to  these  statutes,  as  well  as  to  the  modern  mini- 
mum wage  statutes,  the  Supreme  Court  of  Indiana  recently 
said  :24 

"In  the  very  nature  and  constitution  of  things,  legisla- 
tion which  interferes  with  the  operation  of  natural  and 
economic  laws  defeats  its  own  object,  and  furnishes  to 
those  whom  it  professes  to  favor  fe\v  of  the  advantages 
expected  from  its  pro  visions. " 

From  the  beginning  of  the  nineteenth  century,  English  labor 
statutes  have  been  framed  for  the  protection  of  the  laborer. 
These  include  the  factory  acts  promoting  safe  and  sanitary  con- 
ditions for  labor,  limiting  the  hours  for  dangerous  or  unhealthy 
occupations,  and  the  acts  for  workmen's  compensation  in  case 
of  casualty,  and  other  measures,  many  of  which  in  form  or  in 
spirit  have  become  or  are  becoming  statutory  mea-suves  in  this 
country. 

The  statutory  minimum  wage,  however,  is  a  modern  idea.  It 
first  appeared  in  Belgium  in  1887  in  the  form  of  a  minimum 
wage  statute  for  laborers  employed  in  public  work.  This,  as 
we  shall  see,  is  far  different,  upon  both  economic  and  constitu- 
tional grounds,  from  legislating  a  minimum  wage  for  private 
employment.  In  jurisdictions  with  constitutions,  limited  or  un- 
limited, the  power  of  the  State  has  always  been  recognized,  to 
legislate  as  to  the  terms  of  labor  contracts  in  which  the  State 
itself  or  any  of  its  municipal  subdivisions,  arms  of  the  State, 
should  be  a  party. 

The  first  legislative  minimum  wage  applying  to  private  em- 
ployment was  adopted  in  Victoria  in  1896  and  was  soon  fol- 
lowed by  similar  statutes  in  other  Australian  provinces  and  in 
New  Zealand,  and  has  been  in  force  in  England  since  January, 


24  Street  vs.  Varney  Electrical  Co.,   160  Ind.  338. 


29 

I910.25  These  Australian  and  English  acts  applied  to  both  male 
and  female  employes.  It  should  be  kept  in  mind  that  there  is 
no  constitutional  limitation  of  the  power  of  Parliament  in  such 
matters.  When  Parliament  has  determined  the  question  of  the 
expediency  of  a  policy,  its  expression  in  statutory  form  be- 
comes both  the  statute  and  the  constitution.  The  English  Par- 
liament had  the  benefit  of  the  experience  of  New  Zealand  and 
the  Australian  provinces,  and  also  of  the  special  investigation 
and  report  by  the  British  expert  Aves  upon  the  results,  theo- 
retical and  practical,  of  such  legislation  in  Australasia.  As 
already  shown,  his  report  was  that  the  real  practical  benefit  of 
these  statutes  was  to  promote  voluntary  co-operation  on  the 
part  of  the  employer;26  and  that  the  conclusion  was  not  then 
(in  1909)  justified  that  the  recommendations  of  any  special 
wage  board  should  be  made  legally  binding  in  a  country  like 
England,  or  that  such  power,  if  granted,  could  be  effectively  ex- 
ercised. He  deemed  these  attempts  in  the  Australian  provinces 
and  in  New  Zealand  as  yet  mere  experiments,  even  in  those  coun- 
tries, and  that  their  apparent  success  was  due  to  the  prevalence 
of  good  times  since  their  adoption,  and  to  the  fact  that  they  ap- 
plied to  a  small,  centralized  government,  and  were  limited  to 
only  a  very  small  number  of  workers,  and  thereby  presented 
much  less  and  entirely  different  difficulties  of  application  from, 
those  which  would  be  confronted  in  a  country  like  England 
or  the  United  States.27  England,  therefore,  proceeded  cautious- 
ly, and  the  act  of  1909  was  applicable  to  only  four  trades  in 
which  much  sweating  existed,  and  it  was  also  extended  to  all 
workers  underground.  The  English  statutes  must  still  be  con- 
sidered experimental.  They  are  being  applied  by  thoroughly 
organized  wage  boards,  but  dissatisfaction  is  expressed,  not  so 
much  as  to  the  rate  of  wages  established,  as  to  the  system  of  the 
minimum  wage,  and  not  only  by  employers,  but  by  employes. 

The  adoption  of  a  minimum  wage  in  this  country,  beginning 
with  the  Massachusetts  act  of  1912,  was  borrowed,  as  was  other 

25  The   Trade  Boards  Act,   9   Edw.   7.   Chap.   22,   adopted  Oct.   20,   1909;   Report 
Massachusetts   Commission  on  Minimum  Wage  Boards,    1912,   page  14-161;   Annals 
of  Academy   Political   and   Social   Science,   July,   1913,    "The   Minimum   Wage  as  a 
Legislative   Proposal   in   the   United    States,"    by   Prof.    Lindsay,    pages    45-46,   and 
"The  Minimum  Wage  in  Great  Britain  and  Australia,"  by  Prof.  Hammond,  pages 

26  Report  Massachusetts   Commission   on   Minimum  Wage   Boards,   June,    1912, 
page  14. 

27  "The  Legal  Minimum  Wage,"   by  James  Boyle,  Forum,  May,  1913. 


30 

labor  legislation  from  England.  It  is  obvious  that  the  fact  of 
the  adoption  of  such  legislation  by  England,  and  even  of  its 
practicability  and  enforcibility  in  that  country,  would  not  be 
conclusive  of  its  practicability  or  enforcibility  in  this  country. 
Its  attempted  application  here  is  confined  by  the  statutes  to  fe- 
males and  minors,  in  order  to  make  its  proposed  beneficiaries 
within  a  class  sufficiently  distinctive  for  the  basis  of  some  ar- 
gument in  favor  of  justification  for  such  legislation  under  the 
police  power  of  the  State.  This  is  on  the  theory  that  women 
and  minors  are  generally,  as  a  class,  weak  in  bargaining  power, 
and  peculiarly  entitled  to  the  protection  of  their  health  and 
morals  through  paternalistic  legislation  which  could  not  be 
enforced  here  as  to  male  adult  workers.28 


THE  MINNESOTA  STATUTE  OF  1913. 

We  now  come  to  the  Minnesota  statute  of  191329.  In  the 
light  of  what  has  been  said  a  mere  reading  of  that  statute, 
which  is  printed  in  the  Appendix  in  full,  would  disclose  to  any 
reader  that  there  are  serious  questions  presented  in  regard 
both  to  its  practicability  and  its  enforcibility.  It  was  not,  then, 
surprising  that  the  first  Advisory  Board  which  was  called  to 
consider  the  question  of  a  minimum  wage  as  applied  to  mercan- 
tile occupations  in  the  Twin  Cities,  should  have  found  it  impos- 
sible to  proceed  without  first  having  satisfactorily  answered 
certain  questions  suggested  from  the  very  terms  of  the  stat- 
ute. These  questions  and  a  resolution  asking  for  their  an- 
swer are  printed  in  full  as  a  part  of  the  Appendix.30  These 
questions,  with  the  exception  of  the  last,  go  primarily  to  the 
practicability  or  workability  of  the  statute,  even  if  it  shall  be 
considered  constitutionally  enforcible.  The  final  question  is  as 
to  its  enforcibility,  and,  therefore,  involves  a  discussion  of  its 
constitutionality.  Let  us  take  up  these  two  classes  of  questions 
in  their  order: 


28  Annals  American  Academy  Political  and   Social  Science,   July,   1913:     "The 
Minimum  Wage  as  a  Legislative   Proposal  in  the  United   States,"   by   Samuel  M. 
Lindsay,  Professor  of  Social  Legislation,  Columbia  University;  also,  "The  Minimum 
Wage  in   Great  Britain   and  Australia."   by   Matthew   B.   Hammond,    Professor   of 
Economics  and  Socialogy,  Ohio  State  University. 

29  See  Appendix  I. 

30  See  Appendix  II. 


31 


PRACTICAL  QUESTIONS  SUGGESTED  UNDER  THE  MINNESOTA  STAT- 
UTE. 

Among  the  many  questions  propounded,  together  with  others 
suggested,  are  the  following: 

1.  Can  the  Commission  fix  a  minimum  wage  for  any  occu- 
pation in  one  district  of  the  state,  without  reference  to  that 
occupation  in  the  state  as  a  whole? 

Section  2  empowers  the  Commission  on  its  own  motion,  to, 
or,  on  request  of  one  hundred  persons  in  any  occupation,  it 
must,  proceed  to  investigate  the  question  of  wages  paid  to 
women  and  minors  in  such  occupation  in  the  state.  It  is  only 
"after"  such  investigation, — that  is,  state-wide, — that  it  may 
determine  the  minimum  wage  for  such  occupation  "throughout 
the  state,"  or  within  any  area  of  the  state  if  differences  in  the 
cost  of  living  warrant  this  restriction  (Sections  5  and  6).  As 
to  any  occupation,  it  may  establish  an  Advisory  Board  whose 
recommendation,  which  may  be  approved  by  the  Commission,  is 
confined  to  minimum  wages  in  the  occupation  in  question  as 
provided  in  Section  6  (Section  9).  But  Section  6  requires  the 
investigation  to  be  state-wide. 

Now,  these  powers,  delegated  by  the  legislature,  cannot  ex- 
tend further  than  the  terms  expressed  in  the  provisions  by  which 
the  delegated  power  is  given.  Morover,  it  is  manifestly  partial 
and  discriminatory  between  employers  in  the  same  occupation 
to  attempt  to  apply  the  compulsions  of  the  statute  to  one  city, 
or  to  any  particular  part  of  the  state,  without  applying  it  to  the 
entire  state  for  that  occupation.  This  is  true,  whether  the  rate 
of  wage  is  uniform,  or  varied  in  different  localities. 

2.  The  preliminary  investigation,  which  is  a  pre-requisite 
to  the  power  of  the  Commission  to  act,  must  show  that  one-sixth 
of  the  women  and  minor  employes  in  any  one  occupation  in  the 
entire  state  receive  less  than  living  wages. 

This  is  the  provision  of  Section  5,  and  the  "opinion"  required 
of  the  Commission  that  one-sixth  receive  less  than  a  living  wage, 
must,  under  well-known  rules,  be  not  the  arbitrary  guesswork 
of  the  Commission,  but  a  conclusion  founded  upon  the  state- 
wide investigation  expressly  required. 

Moreover,  the  preliminary  investigation  must  be,  as  to  each 


32 

of  the  classes,  "women"  and  "minors" ;  and  the  requisite  basis 
must  be  established  for  women  before  a  minimum  wage  can  be 
established  for  women.  So,  as  to  minors. 

3.  Can  a  separate  minimum  wage  be  established  for  women 
and  another  for  minors;  and  can  there  be  a  different  wage  for 
male  minors  from  that  fixed  for  female  minors? 

The  only  basis  upon  which  the  Commission  is  empowered  to 
fix  a  minimum  wage  for  any  employe  or  class  of  employes,  is 
that  it  shall  be  a  "living  wage"  and  such  living  wage  is  defined 
as  the  wage  "sufficient  to  maintain  the  worker  in  health  and 
supply  him  with  the  necessary  comforts  and  conditions  of  rea- 
sonable life."  The  term  "woman"  is  defined  as  a  female  18  years 
of  age  or  over;  and  the  term  "minor"  as  a  male  under  21  years 
of  age  or  a  female  under  18  years  ( Section  20 ) .  Now,  it  is  ap- 
parent that  the  minimum  wage  cannot  be  fixed  as  to  each  in- 
dividual according  to  what  is  for  him  or  her  a  "living  wage,"  as 
defined.  The  basis  of  computing  the  rate,  applicable  to  any 
class  or  classes  of  employes,  is  expressly  limited  to  "a  living 
wage"  as  defined.  By  limiting  it  to  "a  living  wage"  consistent 
with  "reasonable  life,"  the  act,  by  its  terms,  views  each  employe 
and  each  member  of  any  class  of  employes,  and  indeed  employes 
of  all  classes,  merely  as  human  beings  having  life  in  which  they 
are  to  be  supplied  with  health  and  the  necessary  comforts. 
No  distinction  is  attempted,  and  it  is  manifest  that  none  can  be 
made,  for  the  different  standards  of  living.  The  standard  which 
is  to  be  the  basis  is  fixed  by  the  express  terms  of  the  statute  and 
that  statutory  standard  applies  equally  to  all  employes  whose 
minimum  wage  is  to  be  fixed.  Therefore,  there  can  be  no  dif- 
ferent standard  recognized  as  a  basis  for  fixing  the  minimum 
wage  for  a  woman  minor  from  that  fixed  for  a  male  minor. 
Neither  can  there  be  any  difference  recognized  between  the  mi- 
nor, whether  male  or  female,  of  17  years  of  age  and  the  minor 
who  is  only,  say,  12  years  of  age.  The  standard  fixed  is  applied 
to  the  employe  as  a  person,  independent  of  his  other  means  of 
sustenance  or  support,  Again,  no  different  standard  of  meas- 
urement could  be  applied  to  the  female  minor  of  17  years  or  to 
the  male  minor  of  20  years,  than  is  applied  to  the  "woman,"  not 
minor,  of  18  years,  or  of  22  years,  or  more. 

Consequently,  the  minimum  wage  to  be  fixed  as  to  any  occu- 


33 

pation  in  any  one  locality  cannot  vary  as  between  minors,  male 
and  female,  and  adult  women ;  neither  can  it  vary  between  male 
and  female  minors. 

4.  The  statute  does  not  allow  for  any  distinctions  between 
experienced  workers  or  workers  of  ordinary  ability  and  those 
who  are  merely  learners  or  apprentices. 

In  terms  the  statute  requires  an  advisory  board,  with  refer- 
ence to  any  occupation  in  question,  to  recommend  a  minimum 
wage  sufficient  (1)  "for  women  and  minors  of  ordinary  ability ;" 
and  (2)  "far  learners  and  apprentices"  (Section  8).  It  is  pro- 
vided that  the  terms  "learner"  and  "apprentice"  mean  either  a 
"woman"  or  a  "minor"  and  that  the  term  "worker"  or  "employe" 
means  either  a  woman,  a  minor,  a  learner  or  an  apprentice  ( Sec- 
tion 20).  But,  as  already  shown,  there  is  no  provision  for  any 
adjustment  or  variation  as  between  any  of  these  last  named 
four  classes. 

The  basis  of  computing  the  minimum  wage  is  confined  to  mak- 
ing it  a  "living  wage"  for  the  employes  to  which  it  is  applicable. 
The  statutory  definition  of  "living  wage"  is  the  same  for  each 
and  every  employe  and  for  each  and  every  class  of  employes. 
A  learner  or  apprentice  may  be  either  a  woman  adult  or  a  wom- 
an minor;  or  either  a  male  minor  under  21  years  or  a  female  mi- 
nor under  18  years.  The  statute  can  affect  none  except  women 
or  minors,  so  that  adult  male  learners  or  apprentices  are  ex- 
cluded from  even  the  terms  of  the  act. 

Manifestly,  then,  there  is  no  power  to  compute  a  minimum 
wage  for  learners  or  apprentices  at  a  different  rate  from  that 
for  any  and  all  other  classes  of  employes  affected;  because  the 
minimum  wage  itself  and  its  basis  of  computation  are  fixed 
up  to  the  full  living  wage  as  applied  to  the  employe  as  a  per- 
son, without  distinction  by  reason  of  the  time  of  his  employ- 
ment, the  amount  of  his  efficiency,  or  the  fact  whether  he  is 
classed  as  one  kind  of  an  employe  or  another. 

5.  The  reasons  already  shown  answer  the  other  inquiries 
under  paragraph  4  of  the  questions  propounded  by  the  Advisory 
Board. 

The  same  minimum  wage  must  be  fixed  for  all  classes  of  em- 
ployes to  which  it  is  applied  in  any  occupation  in  any  locality. 
By  the  terms  of  the  statute,  there  is  prohibited  the  possibility 


34 

of  any  consideration  being  given  to  the  fact  that  the  standard 
of  living  of  one  employe  is  higher  than  another,  or  that  the 
standard  of  one  class  of  employes  is  higher  than  another.  More- 
over, the  standard  of  computation  is  so  fixed  by  the  statute  that 
no  consideration  can  be  given  to  the  ability  of  the  employer  to 
pay.  Again,  no  variation  can  be  made  on  the  ground  that  any 
employe  or  class  of  employes  has  to  contribute  to  the  support 
of  others  dependent  upon  him;  nor  that  the  employes  them- 
selves may  be  receiving  the  benefit  or  aid  of  contribution  from 
their  relatives  or  others.  This  alone  shows  the  insufficiency  of 
the  statute,  its  impracticability  as  a  working  measure,  and  its 
unreasonable  provisions,  resulting  in  discrimination,  not  only 
between  the  employes  themselves,  but  also  between  the  employes 
and  employers  and  also  between  different  employers  in  the 
same  occupation. 

The  inelastic  basis  fixed  by  the  statute  for  the  computation 
of  the  minimum  wage  prohibits  also  any  consideration  to  be 
taken  of  the  advantages,  educational  or  otherwise,  which  the 
employe  receives  from  any  particular  employment,  whether  such 
employe  be  a  learner  of  the  occupation  in  which  he  is  engaged, 
or  otherwise.  These  considerations,  in  practice,  have  always 
influenced,  and  very  properly  so,  the  amount  of  wage  which 
is  reasonable  for  the  employe,  and  which  the  employer  is  will- 
ing and  able  to  pay.  But  these  reasonable  considerations  in  fix- 
ing the  wage  are  precluded  by  the  terms  of  the  statute.  No 
matter  that  an  employe  and  an  employer  should  afterward  agree 
upon  a  reasonable  wage,  computed  in  view  of  these  and  other 
reasonable  considerations,  nevertheless,  if  it  happens  to  be, 
even  for  a  short  time,  less  than  the  fixed  statutory  minimum 
wage  for  such  employe,  the  latter  may  repudiate  his  contract, 
retaining  all  the  advantage,  and  sue  his  emploper  for  the  differ- 
ence (Section  14),  and  such  employer  also  may  be  fined  and 
imprisoned  ( Section  19 ) . 

In  view  of  the  foregoing,  it  is  manifest  that  when  the  mini- 
mum wage  is  fixed  for  women  and  minors  in  any  particular  oc- 
cupation, one  of  two  things  must  occur.  The  necessary  uniform 
wage,  impossible  of  variation  to  suit  the  different  classes  of 
employes  and  the  different  circumstances  of  their  employment, 
must  either  (1)  be  made  on  the  basis  of  the  standard  of  the  low- 


35 

est  of  the  members  of  the  class  of  employes  affected;  or  (2)  it 
must  be  placed  at  a  rate  above  the  lowest  standard  and  perhaps 
up  to  the  highest  standard  of  any  employes  affected.  In  either 
case,  such  minimum  rate  cannot  be  satisfactory  to  all  employes 
affected.  In  case  the  former  method  is  adopted,  the  minimum 
fixed  will  tend  to  become  the  minimum  for  all  lower  class  em- 
ployes. In  both  cases,  all  employes  of  an  efficiency  less  than  that 
measured  by  the  wage-rate  fixed  will  go  out  of  employment,  the 
number  thus  forced  out  increasing  as  the  minimum  rate  is 
raised ;  so  that  in  the  latter  case,  of  a  minimum  rate  computed 
by  the  highest  standard,  the  greatest  number  of  employes  are 
forced  out  and  deprived  of  the  advantages  of  learning  a  trade  or 
business  and  of  receiving  some  wages  which  will  at  least  assist 
in  their  sustenance  during  their  apprentice  period. 

Accordingly,  without  touching  the  question  of  constitution- 
ality, having  in  mind  the  general  objections  to  a  statutory  mini- 
mum wage  based  upon  practical  economic  questions,  already 
presented,  it  is  obvious  that  the  Minnesota  statute  of  1913  is 
exceptionally  narrow  in  its  scope  and  terms,  and  is  impractica- 
ble both  from  an  economic  viewpoint  and  business  viewpoint 
and  from  the  viewpoint  of  an  employe  as  well  as  an  employer; 
and  that,  with  its  present  terms  and  provisions,  it  is  unworka- 
ble. It  is  so  defective  that  it  could  not  serve  the  purpose, — 
which  heretofore  has  been  found  to  be  the  main,  if  not  the  only 
real,  practical,  salutary  effects  of  such  statutes, — of  promoting 
co-operation  between  employers  and  the  State  Wage  Commis- 
sion in  the  cause  of  better  pay  for  wage  earners. 

Such  co-operation  would  be  further  discouraged  and  pre- 
vented if  the  statute  should  be  finally  determined  by  the  courts 
to  be  unenforcible  against  any  employer  or  class  of  employers 
to  whom  it  is  attempted  to  be  applied.  In  such  event,  also,  the 
entire  work  of  the  Commission  theretofore  done  would  be  fu- 
tile, and  the  general  cause  represented  by  the  advocacy  of  a 
minimum  wage  would  be  discredited;  to  say  nothing  of  the 
great  expense  of  time  and  trouble  which  would  have  been  wast- 
ed. Many  employers,  particularly  in  the  retail  mercantile  busi- 
ness, are,  as  we  have  seen,  ready  to  co-operate  to  any  reasona- 
ble degree  with  any  proposition  or  measure  for  the  betterment 
of  their  employes,  and  would  gladly  join  in  the  establishment  of 


86 

a  minimum  wage  at  a  fair  and  reasonable  rate,  if  they  could  be 
assured  that  ultimately  their  acquiescence  and  co-operation 
with  the  work  of  the  Commission  could  really  be  expected,  un- 
der the  statute  in  question,  to  bring  about  the  results  proposed. 
It  is  reasonable  that  they  should  desire  to  be  assured  that  by 
their  unqualified  acquiescence  in  the  orders  promulgated  by 
the  Commission,  they  would  not  thereby  make  themselves  the 
subjects  of  unfair  and  unreasonable  discrimination  in  favor 
of  competitors.  It  is  reasonable  to  demand  an  answer  to  the 
question:  If  certain  employers  acquiesce  and  co-operate,  and 
thereby  bind  themselves  to  the  orders  finally  promulgated  by 
the  Board,  then  will  other  competing  employers  in  the  same  oc- 
cupation be  compelled  to  adopt  the  same  minimum  wage?  Oth- 
erwise, voluntary  acquiescence  means  not  only  no  benefit  in  the 
end  to  the  employes  in  question,  but  it  means  loss  and  perhaps 
disaster  on  the  part  of  the  employers  acquiescing.  It  means 
at  the  same  time  that  the  recalcitrant  employers  reap  not  only 
temporary  but  permanent  selfish  advantage  and  profit. 

The  question  of  constitutionality  is  therefore  a  proper  one, 
and  a  vital  one,  and  its  careful  consideration  is  of  the  utmost 
importance  in  the  interests  of  the  employes,  in  the  interests  of 
employers,  and  in  the  interests  of  the  members  of  the  State 
Commission  and  its  Advisory  Board,  including  all  the  forces 
which  are  working  to  the  establishment  in  this  state  of  a  mini- 
mum wage  for  women  and  minors. 

Next,  therefore,  I  take  up  the  final  question  recently  pro- 
pounded by  the  Advisory  Board :  Is  the  Minnesota  statute  en- 
forcible? 


THE  MINNESOTA  STATUTE  Is  UNCONSTITUTIONAL. 

The  theory  upon  which  the  Minnesota  statute  is  based,  as  a 
constitutional  question,  is  shown  by  the  following  propositions 
which  will  be  urged  by  those  arguing  in  its  support : 

(1)  While  the  statute  has  the  effect  to  limit  the  right  of 
contract  in  private  employment,  also  to  compel  an  employer, 
so  long  as  he  retains  certain  employes  on  his  pay  roll,  to  pay 
them  in  excess  of  what  they  earn  and  thereby  compels  the  em- 
ployer to  contribute  to  the  sustenance  of  the  employe  without 


37 

regard  to  consideration,  and  although  it  has  the  effect  to  dis- 
criminate between  the  employer  affected  and  other  employers 
within  or  without  the  state  who  are  in  the  same  class, — yet 
neither  for  this  or  for  other  reasons  is  the  statute  necessarily 
repugnant  to  the  constitutional  prohibition  against  statutes 
having  such  effects,  because  it  is  a  statute  the  prime  object  arid 
effect  of  which  are  to  protect  and  safeguard  the  general  public 
welfare,  in  that  it  promotes  the  general  health  and  morals  of 
its  citizens  and  particularly  of  that  class  of  citizens  to  whom 
it  applies,  and  therefore  it  is  justified  as  a  proper  exercise  of  the 
police  power  of  the  State. 

(2)  That  the  statute  has  the  same  basis  of  constitutionality 
as  statutes  which  have  been  sustained,  regulating  certain  rules 
between  employer  and    employe,  including  those    compelling 
healthful  and  safe  conditions  and  instrumentalities  for  work; 
those  restricting  hours  of  labor  and  even  a  minimum  wage  for 
employes  engaged  in  public  employment  or  in  public  work; 
those  limiting  the  hours  in  private  employment  in  occupations 
in  their  nature  peculiarly  and  necessarily  unhealthful  or  haz- 
ardous; and  also  those  providing  employment  restrictions  pe- 
culiarly necessary,  in  the  instances  in  which  the  statutes  are  ap- 
plicable, to  the  protection  of  women  or  minors,  as  such,  and  as 
distinguished  from  the  less  stringent  restrictions  assumed  to  be 
necessarv  for  the  protection  of  men  adult  employes. 

(3)  For  the  reason  that  the  police  power  has  been  sustained 
as  the  basis  for  certain  statutory  regulations,  applicable  to  cer- 
tain cases  of  employment  in  favor  of  women,  as  such,  and  in 
favor  of  minors,  as  such,  which  presumably,  under  the  decisions, 
could  not  be  applied  to  adult  male  employes;  therefore,  any 
statute  regulative  of  employment  of  women,  or  of  women  and 
minors,  if  only  its  purpose  be  made  ostensibly  to  appear  as  one 
to  preserve  or  promote  the  morals  and  health  of  the  intended 
beneficiaries  of  the  act,  must  be  sustained  as  within  the  police 
power  of  the  state. 

(4)  The   Minnesota  minimum  wage  statute,   applying  to 
women  and  minor  employes,  engaged  in  any  occupation,  is  just 
such  a  statute  as  is  described  in  the  last  premise.    It  is,  there- 
fore, within  the  police  power,  no  matter  that  it  restricts  the  lib- 
erty of  contract,  takes  the  property  of  one  for  the  benefit  of  an- 
other, and  has  many  effects  which,  otherwise  than  for  the  para- 
mount nature  of  the  police  power,  would  make  it  repugnant  to 
the  well  known  constitutional  limitations  prohibiting  statutes 
depriving  citizens  of  their  liberty  or  property  without  due 


38 

process  of  law,  discriminating  between  citizens  of  the  same 
class,  unduly  delegating  legislative  power,  and  other  limitations 
safeguarding  well  recognized  individual  personal  and  property 
rights. 

Any  argument  in  favor  of  the  constitutionality  of  this  stat- 
ute, however  expressed,  will,  when  analyzed,  resolve  itself  into 
an  attempt  to  support  the  propositions  of  law  as  above  ex- 
pressed. It  requires  only  a  cursory  examination  of  the  authori- 
ties to  disclose  the  fallacy  of  that  argument. 

There  has  been  no  decision  of  any  appellate  court,  federal  or 
state,  sustaining  a  statutory  compulsory  minimum  wage  for 
either  men  or  women  or  minors  in  any  private  employment.  No 
inferior  court,  federal  or  state,  has  sustained  such  a  measure, 
with  the  exception  of  the  recent  decision  of  Judge  T.  J.  Cleeton 
of  the  Circuit  Court  of  Multnomah  County,  Oregon,  in  the  case 
of  Frank  C.  Stettler,  plaintiff,  vs.  Edwin  V.  O'Hara,  et  al.,  mem- 
bers of  the  Industrial  Welfare  Commission  of  the  State  of  Ore- 
gon, defendants.  This  case  was  brought  to  test  the  constitu- 
tionality of  the  Oregon  minimum  wage  statute,  which,  as  here- 
in shown,  by  reason  of  its  provisions  for  hearing  and  notice  and 
other  provisions,  is  less  open  to  the  charge  of  unconstitution- 
ality  than  is  the  Minnesota  statute. 

Judge  Cleeton,  in  his  decision,  takes  the  position  that,  as  the 
question  involved  was  undetermined  by  any  decision  of  the  high- 
est courts  covering  the  precise  question,  he  would,  for  the  time, 
solve  all  doubts  in  favor  of  the  constitutionality  of  the  statute, 
in  order  that  on  appeal  to  the  higher  courts  the  question  might 
be  there  determined.  The  case  is  now  pending  in  the  Supreme 
Court  of  Oregon. 

In  order  further  to  direct  attention  to  the  precise  questions 
here  involved,  and  to  show  the  fact  that  the  very  distinctions 
made  in  the  decisions  of  the  highest  courts  in  cases  of  other 
statutory  regulations  in  labor  matters  point  very  clearly  to  the 
conclusions  herein  reached,  I  will  next  show  that  certain  de- 
cisions and  classes  of  decisions  which  are  cited  in  support  of  a 
statutory  minimum  wage  for  employes  in  private  employment, 
not  only  do  not  support  such  a  minimum  wage,  but  are  conclu- 
sive against  it. 

Such  decisions  are  those  (1)  upholding  statutory  hours  or 


39 

wages  for  employes  engaged  in  public  work;  and  (2)  next, 
decisions  upholding  statutory  hours  for  employes  engaged  in 
exceptionally  unhealthy  or  hazardous  occupations,  and  then 
(3)  decisions  extending  the  police  power  of  statutory  protec- 
tion to  women  beyond  the  limits  established  for  men,  and  show- 
ing the  grounds  of  the  distinction  in  favor  of  women  and  the 
limits  within  which  such  distinction  is  permissible.  Such  ex- 
amination will  show  that  the  statutory  limits  of  regulation  of 
employment  of  women  under  the  police  power  are  so  established 
as  to  prohibit  the  statutory  minimum  wage  for  women  and  mi- 
nors as  provided  by  the  Minnesota  act  of  1913. 

In  other  words,  it  will  be  shown  that  the  decisions  cited  in 
support  of  this  minimum  wage  not  only  do  not  support  it,  but 
on  the  contrary  are  against  it.  To  this  showing  will  be  added 
decisions  directly  adjudicating  that  such  statutory  minimum 
wage  for  private  employment  is  unconstitutional. 

DECISIONS  AS  TO  EMPLOYES  ENGAGED  IN  PUBLIC  WORK. 

A  Kansas  statute  regulating  the  employment  of  all  laborers, 
in  any  public  work,  to  an  eight  hour  day,  was  upheld  by  the 
United  States  Supreme  Court,  without  reference  to  the  ques- 
tion of  police  power,  on  the  ground  that  the  State  had  the 
power  to  prescribe  the  conditions  upon  which  it,  the  State,  or 
any  of  its  municipal  divisions,  which  are  a  part  of  the  State, 
should  enter  into  contracts  for  labor.  As  said  by  Justice  Har- 
lan,  who  wrote  the  decision : 

"Whatever  may  have  been  the  motives  controlling  the 
enactment  of  the  statute  in  question,  we  can  imagine  no 
possible  ground  to  dispute  the  power  of  the  State  to  de- 
clare that  no  one  undertaking  work  for  it  or  for  one  of  its 
municipal  agencies,  should  permit  or  require  an  employe 
on  such  work  to  labor  in  excess  of  eight  hours  each  day, 
and  inflict  punishment  upon  those  who  are  embraced  by 
such  regulations  and  yet  disregard  them.  It  cannot  be 
deemed  a  part  of  the  liberty  of  any  contractor  that  he  be 
allowed  to  do  public  work  in  any  mode  he  may  chose  to 
adopt,  without  regard  to  the  wishes  of  the  State.  On  the 
contrary,  it  belongs  to  the  State,  as  the  guardian  and  trus- 
tee for  its  people,  and  having  control  of  its  affairs,  to  pre- 
scribe the  conditions  upon  which  it  will  permit  public  work 


40 

to  be  done  on  its  behalf,  or  on  behalf  of  its  municipali- 
ties."31 

The  Court,  in  the  same  decision,  expressly  holds  (page  218) 
that  the  question  of  police  power,  touching  the  regulation  of 
hours  in  private  employment  in  hazardous  occupations,  such 
as  was  discussed  in  the  case  of  Holden  v.  Hardy,  169  U.  S.  366, 
was  not  involved  for  the  reason,  as  shown  by  the  quotation  just 
given,  that  the  work  was  public  work. 
What  is  more  significant,  the  Court  says : 

"No  question  arises  here  as  to  the  power  of  a  State,  con- 
sistently with  the  federal  constitution,  to  make  it  a  criminal 
offense  for  an  employer  in  purely  private  work  in  which 
the  public  has  no  concern,  to  permit  or  to  require  his  em- 
ployes to  perform  daily  labor  in  excess  of  a  prescribed  num- 
ber of  hours." 

Then  distinguishing  the  case  of  Holden  v.  Hardy,  in  which  the 
limitation  of  hours  for  laborers  in  underground  mines  and 
smelters  to  eight  hours,  was  supported  on  the  ground  of  the  ex- 
ceptional hazards  of  the  employment,  the  Court  said : 

"As  already  stated,  no  such  question  is  presented  by  the 
present  record ;  for,  the  work  to  which  the  complaint  refers 
is  that  performed  on  behalf  of  a  municipal  corporation, 
not  private  work  for  private  parties.  Whether  a  similar 
statute,  applied  to  laborers  or  employes  in  purely  private 
work  would  be  constitutional,  is  a  question  of  very  large 
import,  which  we  have  no  occasion  now  to  determine  or 
even  to  consider."32 

This  decision  established  the  principle  that  statutory  regula- 
tion of  hours,  or  even  of  wages  or  any  other  condition,  as  ap- 
plied to  contracts  or  employment  for  public  work,  does  not  pre- 
sent the  question  of  police  power ;  that  such  a  statute  is  within 
the  power  of  the  State,  on  the  ground  of  public  policy,  which 
leaves  to  the  State  the  power  to  control  the  conditions  of  con- 
tracts to  which  it  or  its  municipal  subdivisions  shall  be  a  party 
for  the  purpose  of  its  own  public  work. 

This  authority  is  recognized  in  the  recent  Washington  de- 
cision where  a  state  statute  not  only  regulated  hours,  but  fixed 

31  Atkin  vs.  Kansas,  191  U.  S.,  207,  222. 

32  Atkin  vs.  Kansas,  191  U.  S.,  207,  218-219. 


41 

a  minimum  wage  for  employers  engaged  in  public  work.  It  was 
upheld  by  the  Supreme  Court  of  Washington  on  a  second  hear- 
ing, on  authority  of  the  reasoning  and  conclusion  in  the  case  of 
Atkin  v.  Kansas.33 

Cases,  therefore,  decided  on  the  ground  that  the  work  in- 
volved is  public  work,  not  only  do  not  apply,  but  they  clearly 
make  a  distinction  as  against  cases  of  private  employment  and 
indicate  that  any  general  statute  regulating  hours  or  wages  in 
private  employment  must,  as  to  the  classes  of  labor  to  which 
they  apply,  be  based  upon  distinctions  clearly  sufficient  to 
bring  them  within  the  police  power  of  the  state. 

This  leads  to  the  distinctions  made  with  reference  to  pri- 
vate employment. 

DECISIONS  AS  TO  EMPLOYES  IN  EXCEPTIONALLY  UNHEALTHFUL 
OR  HAZARDOUS  OCCUPATIONS. 

It  has  never  been  held  that,  as  to  men  or  as  to  women,  statu- 
tory restrictions  of  hours  or  wages  could  be  enforced,  except 
as  to  employment  in  such  exceptionally  unhealthful  or  hazard- 
ous occupations,  that  the  peculiar  hazard  to  health,  life  or  limb 
of  those  occupations  justified  the  statute  as  a  police  power  regu- 
lation of  the  health  or  safety  of  the  employes  embraced  in  the 
act. 

On  this  principle  it  has  been  decided  in  many  cases,  which 
holding  has  been  supported  by  the  United  States  Supreme 
Court,  that  hours  of  labor  might  be  limited  in  private  employ- 
ment in  underground  mines,  smelters,  etc.  A  statute  of  Utah 
made  such  limitation  at  eight  hours  and  in  upholding  that 
statute  as  a  proper  exercise  of  the  police  power,  the  United 
States  Supreme  Court  said : 

"The  enactment  does  not  profess  to  limit  the  hours  of 
all  workmen,  but  merely  those  who  are  employed  in  under- 
ground mines,  or  in  the  smelting,  reduction  or  refining  of 
ores  or  metals.  These  employments,  when  too  long  pur- 
sued, the  Legislature  has  judged  to  be  detrimental  to  the 
health  of  employes,  and  so  long  as  there  are  reasonable 
grounds  for  believing  that  this  is  so,  its  decision  upon  this 
subject  cannot  be  reviewed  by  the  federal  courts.  While 

33  Malette  vs.  City  of  Spokane,  Washington,  decided  Dec.  31,  1913. 


42 

the  general  experience  of  mankind  may  justify  us  in  believ- 
ing that  men  may  engage  in  ordinary  employments  more 
than  eight  hours  per  day  without  injury  to  their  health,  it 
does  not  follow  that  labor  for  the  same  length  of  time  is 
innocuous  when  carried  on  beneath  the  surface  of  the  earth, 
where  the  operative  is  deprived  of  fresh  air  and  sunlight 
and  is  frequently  subjected  to  foul  atmosphere  and  a  very 
high  temperature,  or  to  the  influence  of  noxious  gases,  gen- 
erated by  the  process  of  refining  or  smelting."34 

By  this  decision,  there  was  expressly  excluded  the  power, 
though  ostensibly  based  on  the  police  power  of  the  State  to 
protect  health  and  morals,  to  enact  any  regulation  of  private 
employment  and  have  it  applied  to  any  particular  occupation, 
unless  from  the  peculiar  nature  of  that  occupation  itself,  there 
could  be  reasonably  said  to  be  presented  some  peculiar  hazard 
to  the  health  or  welfare  of  the  employes  in  question.  That 
question  of  fact  must  be  determined  by  a  consideration,  first, 
of  the  nature  of  the  occupation  in  question;  and,  second,  the 
nature  of  the  condition  of  the  employes  in  question,  as  con- 
nected with  the  particular  occupation  in  question.  Neither  of 
these  elements  alone  is  sufficiently  determinant.  The  police 
power  cannot  be  exercised  solely  because  the  class  of  employes 
in  question  is  composed  of  men  or  of  women  or  of  minors,  either 
or  all.  Neither  can  it  be  exercised  solely  because  the  occupation 
in  question  is  of  one  kind  or  another,  either  hazardous  or  non- 
hazardous. 

The  exercise  of  the  police  power  in  such  cases  is  to  be  deter- 
mined by  the  nature  and  extent  of  the  peculiar  hazards  to  health 
or  safety  arising  out  of  the  connection  between  the  particular 
class  of  employes  in  question  with  the  particular  occupation  in 
question. 

If,  from  such  connection,  standing  by  itself  and  independent 
of  other  causes  or  conditions,  there  does  not  arise  peculiar] 
conditions  menacing  the  health,  comfort  and  safety  of  the  em- 
ployes, then  there  is  no  ground  for  the  exercise  of  the  police 
power  in  connection  with  such  occupation. 

Without  going  further,  then,  it  is  manifest  that  even 
if  it  be  established  that  a  certain  employer  in  a  certain 

34  Holden  vs.  Hardy,  169  U.  S.,  366. 


43 

occupation  does  not  pay  a  certain  employe  or  a  certain 
class  of  employes  a  living  wage,  by  reason  of  which  fact  the 
health,  comfort  or  even  morals  of  the  employe  is  menaced, 
nevertheless  the  requisite  ground  for  the  interference  of  the 
State  through  its  police  power  is  not  present.  The  needs  of 
the  employe  are  absolutely  independent  of  anything  that  is  re- 
lated to  the  occupation  in  question.  They  are  neither  created 
nor  increased  by  reason  of  any  action  on  the  part  of  the  em- 
ployer or  through  anything  which  is  peculiar  to  the  particular 
occupation  in  question.  This  is  as  far  as  we  would  need  to  go. 
For  the  fact  remains  that  neither  the  lack  nor  the  need  of  a 
living  wage  is  peculiar  to  anv  particular  class  of  persons,  nor 
to  any  particular  class  of  employes,  whether  the  class  distinc- 
tion be  made  on  the  basis  of  age,  of  sex,  or  of  experience.  That 
necessity  is  individual.  It  is  neither  created  nor  increased  bv 
the  fact  that  the  individual  suffering  from  that  common  need, 
that  natural  need,  happens  to  engage  himself  in  a  particular 
occupation  as  an  employe. 

There  is  no  ground  for  the  distinction  attempted  in  this 
minimum  wage  statute,  though  confined  to  women  and  minors, 
which  warrants  its  support  as  a  police  power  measure  in  fur- 
therance of  health  and  morals. 

I  am  stating  these  fundamental  propositions  now  because 
they  are  suggested  by  the  decisions  already  cited,  and  they  will 
be  illustrated  and  confirmed  by  the  decisions  which  I  shall  next 
cite. 

THE  NEW  YORK  BAKERY  SHOP  CASE. 

The  Legislature  of  New  York  passed  a  statute  limiting  the 
hours  of  employment  in  bakeries  to  ten  hours  a  day.  This 
applied  to  employes  of  both  sexes.  The  United  States  Supreme 
Court  held  that  act  void  as  not  within  the  police  powers  of  the 
State,  and  the  Court  said  :35 

"It  must,  of  course,  be  conceded  that  there  is  a  limit  to 
the  valid  exercise  of  the  police  power  by  the  state.  There 
is  no  dispute  concerning  this  general  proposition.  Other- 
wise the  Fourteenth  Amendment  would  have  no  efficacy 
and  the  legislatures  of  the  States  would  have  unbounded 


35  Lochner  vs.  New  York,  198  U.  S.,  45,  56. 


44 

power,  and.  it  would  be  enough  to  say  that  any  piece  of 
legislation  was  enacted  to  conserve  the  morals,  the  health, 
or  the  safety  of  the  people ;  such  legislation  would  be  valid, 
no  matter  how  absolutely  without  foundation  the  claim 
might  be.  The  claim  of  the  police  power  would  be  a  mere 
pretext, — become  another  and  delusive  name  for  the  su- 
preme sovereignty  of  the  state  to  be  exercised  free  from 
constitutional  restraint.  This  is  not  contended  for.  In 
every  case  that  comes  before  this  court,  therefore,  where 
legislation  of  this  character  is  concerned,  and  where  the 
protection  of  the  Federal  Constitution  is  sought,  the  ques- 
tion necessarily  arises:  Is  this  a  fair,  reasonable  and. 
appropriate  exercise  of  the  police  power  of  the  state,  or  is 
it  an  unreasonable,  unnecessary  and  arbitrary  interfer- 
ence with  the  right  of  the  individual  to  his  personal  liberty, 
or  to  enter  into  those  contracts  in  relation  to  labor  which 
may  seem  to  him  appropriate  or  necessary  for  the  support 
of  himself  and.  his  family?  Of  course,  the  liberty  of  con- 
tract relating  to  labor  includes  both  parties  to  it.  The 
one  has  as  much  right  to  purchase  as  the  other  to  sell 
labor. 

"This  is  not  a  question  of  substituting  the  judgment  of 
the  court  for  that  of  the  legislature.  If  the  act  be  within 
the  power  of  the  state  it  is  valid,  although  the  judgment 
of  the  court  might  be  totally  opposed  to  the  enactment  of 
such  a  law.  But  the  question  would  still  remain:  Is  it 
within  the  police  power  of  the  state?  And  that  question 
must  be  answered  by  the  court. 

"The  question  whether  this  act  is  valid  as  a  labor  law, 
pure  and  simple,  may  be  dismissed  in  a  few  words.  There 
is  no  reasonable  ground  for  interfering  with  the  liberty 
of  person  or  the  right  of  free  contract,  by  determining  the 
hours  of  labor,  in  the  occupation  of  a  baker.  There  is  no 
contention  that  bakers  as  a  class  are  not  equal  in  intelli- 
gence and  capacity  to  men  in  other  trades  or  manual  occu- 
pations, or  that  they  are  not  able  to  assert  their  rights 
and  care  for  themselves  without  the  protecting  arm  of  the 
state,  interfering  with  their  independence  of  judgment  and 
of  action.  They  are  in  no  sense  wards  of  the  state.  Viewed 
in  the  light  of  a  purely  labor  law,  with  no  reference  what- 
ever to  the  question  of  health,  we  think  that  a  law  like  the 
one  before  us  involves  neither  the  safety,  the  morals,  nor 
the  welfare  of  the  public,  and  that  the  interests  of  the 
public  is  not  in  the  slightest  degree  affected  by  such  an 
act.  The  law  must  be  upheld,  if  at  all,  as  a  law  pertaining 
to  the  health  of  the  individual  engaged  in  the  occupation 


45 

of  a  baker.  It  does  not  affect  any  other  portion  of  the 
public  than  those  who  are  engaged  in  that  occupation. 
Clean  and  wholesome  bread  does  not  depend  upon  whether 
the  baker  works  but  ten  hours  per  day  or  only  sixty  hours 
per  week.  The  limitation  of  the  hours  of  labor  does  not 
come  within  the  police  power  on  that  ground. 

"It  is  a  question  of  which  of  two  powers  or  rights  shall 
prevail, — the  power  of  the  state  to  legislate,  or  the  right  of 
the  individual  to  liberty  of  person  and  freedom  of  contract. 

"The  mere  assertion  that  the  subject  relates,  though  but 
in  a  remote  degree,  to  the  public  health,  does  not  neces- 
sarily render  the  enactment  valid.  The  act  must  have  a 
more  direct  relation,  as  a  means  to  an  end,  and  the  end 
itself  must  be  appropriate  and  legitimate,  before  an  act 
can  be  held  to  be  valid,  which  interferes  with  the  general 
right  of  an  individual  to  be  free  in  his  person  and  in  his 
power  to  contract  in  relation  to  his  own  labor. 

"This  case  has  caused  much  diversity  of  opinion  in  the 
state  courts.  In  the  Supreme  Court  two  of  the  five  judges 
composing  the  court  dissented  from  the  judgment  affirm- 
ing the  validity  of  the  act.  In  the  Court  of  Appeals  three 
of  the  seven  judges  also  dissented  from  the  judgment  up- 
holding the  statute.  Although  found  in  what  is  called  a 
labor  law  of  the  state,  the  Court  of  Appeals  has  upheld 
the  act  as  one  relating  to  the  public  health, — in  other 
words,  as  a  health  law.  One  of  the  judges  of  the  Court 
of  Appeals,  in  upholding  the  law,  stated  that,  in  his  opin- 
ion, the  regulation  in  question  could  not  be  sustained  un- 
less they  were  able  to  say,  from  common  knowledge,  that 
working  in  a  bakery  and  candy  factory  was  an  unhealthy 
employment.  The  judge  held  that,  while  the  evidence  was 
not  uniform,  it  still  led  him  to  the  conclusion  that  the 
occupation  of  a  baker  or  confectioner  was  unhealthy  and 
tended  to  result  in  diseases  of  the  respiratory  organs.  Three 
of  the  judges  dissented  from  that  view,  and  they  thought 
the  occupation  of  a  baker  was  not  to  such  an  extent  un- 
healthy as  to  warrant  the  interference  of  the  legislature 
with  the  liberty  of  the  individual. 

"We  think  the  limit  of  the  police  power  has  been  reached 
and  passed  in  this  case.  There  is,  in  our  judgment,  no 
reasonable  'foundation  for  holding  this  to  be  necessary 
or  appropriate  as  a  health  law  to  safeguard  the  public 
health,  or  the  health  of  the  individuals  who  are  following 
the  trade  of  a  baker,  if  this  statute  be  valid,  and  if,  there- 
fore, a  proper  case  is  made  out  in  which  to  deny  the  right 
of  an  individual,  sui  juris,  as  employer  or  employee,  to 


46 

make  contracts  for  the  labor  of  the  latter  under  the  pro- 
tection of  the  provisions  of  the  Federal  Constitution,  there 
would  seem  to  be  no  length  to  which  legislation  of  this] 
nature  might  not  go.  The  case  ditfers  widely,  as  we  have 
already  stated,  from  the  expressions  of  this  court  in  regard 
to  laws  of  this  nature,  as  stated  in  Holden  vs.  Hardy,  169 
U.  S.  366,  42  L.  Ed.  780,  18  Sup.  Ct.  Rep.  383,  and  Jacob- 
son  v.  Massachusetts,  197  U.  S.  ante,  643,  25  Sup.  Ct. 
Rep.  358. 

"We  think  that  there  can  be  no  fair  doubt  that  the  trade 
of  a  baker,  in  and  of  itself,  is  not  an  unhealthy  one  to  that 
degree  which  would  authorize  the  legislature  to  interfere 
with  the  right  to  labor,  and  with  the  right  of  free  contract 
on  the  part  of  the  individual,  either  as  employer  or  em- 
ployee. In  looking  through  statistics  regarding  all  trades 
and  occupations,  it  may  be  true  that  the  trade  of  a  baker 
does  not  appear  to  be  as  healthy  as  some  other  trades,  and 
is  also  vastly  more  healthy  than  still  others.  To  the  com- 
mon understanding  the  trade  of  a  baker  has  never  been  re- 
garded as  an  unhealthy  one.  Very  likely  physicians  would 
not  recommend  the  exercise  of  that  or  of  any  other  trade 
as  a  remedy  for  ill  health.  Some  occupations  are  more 
healthy  than  others,  but  we  think  there  are  none  which 
might  not  come  under  the  power  of  the  legislature  to 
supervise  and  control  the  hours  of  working  therein,  if  the 
mere  fact  that  the  occupation  is  not  absolutely  and  per- 
fectly healthy  is  to  confer  that  right  upon  the  legislative 
department  of  the  government.  It  might  be  safely  affirmed 
that  almost  all  occupations  more  or  less  affect  the  health. 
There  must  be  more  than  the  mere  fact  of  the  possible 
existence  of  some  small  amount  of  unhealthiness  to  war- 
rant legislative  interference  with  liberty.  It  is  unfortun- 
ately true  that  labor,  even  in  any  department,  may  possibly 
carry  with  it  the  seeds  of  unhealthiness. 

"But  are  we  all,  on  that  account,  at  the  mercy  of  legis- 
lative majorities?  A  printer,  tinsmith,  a  locksmith,  a  car- 
penter, a  cabinetmaker,  a  dry  goods  clerk,  a  bank's,  a 
lawyer's  or  a  physician's  clerk,  or  a  clerk  in  almost  any 
kind  of  business,  would  all  come  under  the  power  of  the 
legislature,  on  this  assumption.  No  trade,  no  occupation, 
no  mode  of  earning  one's  living  could  escape  this  all-per- 
vading poiver,  and  the  acts  of  the  legislature  in  limiting 
the  hours  of  labor  in  all  employments  would  be  valid, 
although  such  limitation  might  seriously  cripple  the  abil- 
ity of  the  laborer  to  support  himself  and  his  family.  In 
our  large  cities  there  are  many  buildings  into  which  the 


47 

sun  penetrates  for  but  a  short  time  in  each  day,  and  these 
buildings  are  occupied  by  people  carrying  on  the  busi- 
ness of  bankers,  brokers,  lawyers,  real  estate,  and  many 
other  kinds  of  business,  aided  by  many  clerks,  messengers 
and  other  employees.  Upon  the  assumption  of  the  val- 
idity of  this  act  under  review,  it  is  not  possible  to  say  that 
an  act,  prohibiting  lawyers  or  bank  clerks,  or  others,  from 
contracting  to  labor  for  their  employers  more  than  eight 
hours  a  day  would  be  invalid.  It  might  be  said  that  it  is 
unhealthy  to  work  more  than  that  number  of  hours  in  an 
apartment  lighted  by  artificial  light  during  the  working 
hours  of  the  day;  that  the  occupation  of  the  bank  clerk, 
the  lawyer's  clerk,  the  real  estate  clerk,  or  the  broker's 
clerk  in  such  offices  is,  therefore,  unhealthy,  and  the  legis- 
lature, in  its  paternal  wisdom,  must,  therefore,  have  the 
right  to  legislate  on  the  subject  of,  and  to  limit,  the  hours 
for  such  labor;  and  if  it  exercises  that  power,  and  its  val- 
idity be  questioned,  it  is  sufficient  to  say,  it  has  reference 
to  the  health  of  the  employees  condemned  to  labor  day 
after  day  in  buildings  where  the  sun  never  shines;  it  is  a 
health  law,  and  therefore  it  is  valid,  and  cannot  be  ques- 
tioned by  the  courts." 

This  decision  has  been  vigorously  attacked,  and  it  is  even 
asserted  that  the  dissenting  opinion  in  this  case  "is  the  law 
in  this  country  today.'736  But  the  dissenting  opinion  in  that 
case  did  not  support  or  urge  any  principle  which  could  be  the 
foundation  for  a  statutory  minimum  wage  in  private  employ- 
ment. It  was  based  upon  the  proposition  that,  as  the  Legis- 
lature of  New  York  had  declared,  that  the  bakery  industry  was 
peculiarly  dangerous  to  the  health  of  employes,  the  con- 
trary fact  was  not  so  well  established  and  well  known  that 
an  appellate  court  could  say  of  its  own  motion  that  the  finding 
of  the  Legislature  was  wrong  upon  this  question  of  fact,  nor 
that  the  state  appellate  court  was  wrong  in  refusing  to  reverse 
the  state  legislature  as  to  that  finding  of  fact,37  But  note  that 
in  this  decision  there  is  emphasized  the  principle  which  I  have 
above  stated  as  controlling  the  consideration  of  the  constitu- 
tionality of  this  minimum  wage  statute,  and  my  present  con- 
tention is  supported  even  more  by  the  dissenting  opinion  than 
by  the  main  opinion.  Taken  together,  they  form  a  complete 

36  Report  Massachusetts  Commission  on  Minimum  Wage  Boards  1912,  page  24. 

37  Lochner  vs.  New  York,  198  U.  S.,  45;  Dissenting  Oponion,  65-74. 


48 

confirmation  of  my  proposition,  and  a  complete  answer  to  the 
claim  of  constitutionality  for  this  minimum  wage  statute.  They 
clearly  establish  the  rule  that  in  these  matters  the  hazard  to 
safety,  health  or  comfort  of  the  employe  which  may  be  pro- 
tected by  the  statutory  regulation  must  be  a  hazard  peculiar 
to  the  occupation  in  question. 

A  statutory  restriction,  even  as  to  hours  of  labor,  which  had 
no  relation  between  the  occupation  affected  and  the  question 
of  the  safety,  health  or  morals  of  the  employe,  could  have  no 
validity  based  upon  the  police  power  of  the  state.  Yet  this 
minimum  wage  statute  applies  to  any  occupation  and  to  each 
and  all  occupations,  businesses  and  industries,  and  to  every 
branch  thereof,  without  any  reference  or  consideration  to  any 
peculiarity  of  any  such  occupation,  much  less  of  any  peculiar- 
ity with  reference  to  it  being  hazardous  to  safety,  health  or 
morals.  Accordingly,  a  regulation  of  hours  made  in  the  broad 
terms  of  this  statute  could  not  be  justified;  much  less  a  regu- 
lation of  wages,  computed  by  the  living  needs  of  the  employe, 
which  are  not  even  remotely  connected  with,  but  are  absolutely 
divorced  from,  anything  arising  out  of  the  occupation  itself. 

There  is  no  "real  or  substantial  relation"  between  the  employ- 
ments affected  by  such  a  statute  and  the  objects  which  it  pur- 
ports to  accomplish.  In  other  words,  there  is  no  real  or  sub- 
stantial relation  between  the  occupation  of,  for  instance,  the 
retail  merchant  and  the  natural  necessity  or  the  natural  desert 
of  an  employe  to  receive  a  living  wage,  even  though  a  living 
wage  be  necessary  for  the  reasonable  health  and  comfort  of 
the  employe.  Even  if  we  admit  that  it  is  the  ethical  or  religious 
duty  of  an  employer  to  supply  this  need,  still  there  is  no  legal 
basis  for  compelling  him  to  do  so,  merely  because  in  some  occu- 
pation he  holds  to  the  person  in  need  the  relation  of  employer 
to  employe. 

As  has  been  said  by  the  United  States  Supreme  Court  many 
times,  and  reiterated  by  the  dissenting  opinion  in  the  Lochner 
case,  a  court  should  declare  such  statute  invalid  if  it,  though 
"purporting  to  have  been  enacted  to  protect  the  public  health, 
the  public  morals  or  the  public  safety,  has  no  real,  substantial 
relation  to  those  objects,  or  is,  beyond  all  question,  a  plain, 
palpable  invasion  of  the  rights  secured  by  the  fundamental 


49 

law."38 

No  statutory  regulation  of  labor,  whether  as  to  labor  condi- 
tions, hours  or  wages  which  involved  a  payment  or  charge  upon 
the  employer  in  favor  of  the  employe  has  ever  been  sustained, 
unless  such  charge  has  been  to  compensate  the  employe  for  or 
to  relieve  him  from  some  hazard  or  disadvantage  arising  di- 
rectly out  of  the  employment  in  question.  On  this  principle, 
hours  may  be  restricted  as  to  employes  to  whom  in  the  occupa- 
tion in  question  longer  hours  are  unhealthy  or  dangerous.  Safe 
and  healthful  conditions  of  work  may  be  required,  including 
safety  appliances  in  machinery.  Also,  under  workmen's  com- 
pensation acts,  casualty  from  accident  in  the  employment  may 
be  insured  against  at  the  expense  of  the  employer.  It  could 
never  be  seriously  claimed,  however,  that  an  employer  could 
be  compelled  to  provide  reasonably  necessary  sick  benefits  or 
death  benefits  for  his  employe  or  employe's  family,  on  the 
ground  that  such  misfortunes  occurred  directly  or  indirectly 
bo  the  employe  while  employed, — meaning,  of  course,  sickness 
and  death  of  the  employe,  or  members  of  his  family,  which  are 
not  results  of  contact  with  the  employment.  Nevertheless,  such 
benefits  would  be  promotive  of  the  health  and  comfort  of  the 
employe  and  are  included  in  the  reasonable  necessaries  of  life. 
Such  benefits  cannot  be  imposed  where  their  necessity  does 
aot  originate  from  the  employment  itself.  For  the  same  reason, 
the  minimum  wage  benefit  is  entirely  different  from  other  statu- 
tory benefits  to  employes,  at  the  expense  of  the  employer,  which 
have  been  sustained  by  the  courts.  The  fulfilling  of  the  neces- 
sity in  question  is,  as  a  general  proposition,  promotive  of 
health,  morals  and  comfort,  but  it  is  not  a  necessity  which 
irises  out  of  the  employment,  nor  one  which  is  connected  with 
it.  So  far  as  considerations  of  legal  obligations  are  concerned, 
the  employer  is  a  stranger  to  such  necessities.  Therefore,  he 
cannot  be  compelled  by  law  to  pay  a  wage  based  solely  upon 
the  living  necessities  of  the  employe. 

THE  OREGON  CASE — WOMEN  IN  LAUNDRIES. 

The  case  of  Muller  v.  Oregon,  208  U.  S.,  412,  is  cited  in  sup- 
port of  this  minimum  wage  statute  for  women  employes,  as 

38  Lochner  vs.  New  York,  198  U.  S.,  Dissenting  Opinion,  p.  68. 


50 

establishing  a  right  of  the  legislature,  under  the  police  power, 
to  have  enforced  this  legislation  as  to  women  employes,  which, 
it  is  demonstrated,  under  the  decisions  already  cited,  could  not 
be  enforced  as  to  adult  male  employes.  It  is  claimed  that  this 
case  establishes  the  right  to  place  women  as  a  class  under  he 
purview  of  statutes  regulating  hours  and  wages  and  other  con- 
ditions; and  that  such  restrictions  may  be  made  applicable  to 
any  and  all  occupations  independently  of  the  question  of  any 
hazard  to  safety,  health  or  morals  peculiar  to  the  occupation  in 
question. 

On  the  contrary,  this  Oregon  case  again  confirms  the  prop- 
osition upon  which  my  argument  is  based,  that  in  order  to 
warrant  such  restrictions,  with  reference  to  any  occupation, 
on  the  ground  of  police  power  to  protect  against  hazards  to 
safety  or  health  or  morals,  the  hazard  in  question  must  be 
shown  to  arise  from  the  occupation  in  question  and  in  connec- 
tion with  the  employment  in  question.  More  than  that,  a  re- 
striction as  to  hours  might  be  justified  as  having  "real,  sub- 
stantial relation"  with  the  purposes  of  the  statute.  But  a 
regulation  requiring  a  living  wage  would  have  no  relation 
whatever  to  the  occupation  or  to  the  employment  in  question. 

The  Legislature  of  Oregon  passed  an  act  limiting  the  hours 
for  work  by  females  "in  any  mechanical  establishment,  or  fac- 
tory, or  laundry  in  this  state  more  than  ten  hours  during  any 
day."  The  question  in  this  case  was  as  to  whether  the  pro- 
hibition as  applicable  to  laundries  could  be  enforced. 

Now,  from  what  has  already  been  said,  and  before  we  pro- 
ceed to  examine  the  decision  of  the  federal  supreme  court  in 
this  Oregon  case,  we  can  readily  see  that  the  principles  which 
we  have  stated,  as  already  drawn  from  the  decisions  above 
noted,  would  be  confirmed  or  repudiated  in  the  Oregon  case 
according  to  whether  the  basis  of  that  decision  was  one  or  the 
other  of  the  following  propositions : 

(1)  The  occupation  of  laundry  women,  as  laundries  are 
generally  conducted,  involves  such  requirements  of  the  employe 
that  excessive  hours  would  hazard  the  safety  and  health  of 
the  employe  in  question ;  and,  furthermore,  as  the  employes  in 
question  are  women,  the  hazard  involved  is  peculiarly  danger- 
ous to  women ;  or 


51 

(2)  Under  the  police  power  restrictions  may  be  applied  to 
women  employes  as  a  class,  irrespective  of  the  character  of  the 
occupation  or  kind  of  employment  in  which  their  work  is  done, 
and  irrespective  of  the  kind  of  work  which  the  women  employes 
in  question  have  to  do  in  that  occupation,  and  also  irrespective 
of  whether  or  not  the  hazard  to  their  safety,  health  and  com- 
fort, against  which  it  is  the  object  of  the  act  to  protect  them 
(in  the  case  of  the  minimum  wage  statute  it  is  the  abstract 
right  to  or  need  of  a  living,  and  is  not  a  question  of  hours)  has, 
in  the  words  of  the  Court,  "any  real  or  substantial  relation" 
to  the  objects  sought  to  be  accomplished. 

Now,  a  reading  of  that  decision  shows  that  it  is  based  exactly 
upon  the  former  proposition  and  that  it  squarely  repudiates 
the  latter  proposition.  The  case,  therefore,  not  only  fails  to 
support  the  argument  for  the  constitutionality  of  the  minimum 
wage  statute,  but  is  directly  against  it. 

The  Court  held  that  an  occupation  might  be  injurious  to  a 
woman  employe  when  it  was  not  to  a  man,  and  that,  therefore, 
hours  of  more  than  ten  a  day  for  a  woman  might  be  prohibited, 
if  the  facts  warranted,  when  such  prohibition  in  the  case  of  a 
man  would  not  be  sustained;  and  that  this  distinction,  when 
reasonably  made  the  basis  of  a  statute,  would  be  sustained. 

Then,  referring  to  the  occupation  in  question,  that  of  a 
woman  worker  in  a  laundry,  requiring  her  day  after  day  to  be 
for  a  long  time  on  her  feet  at  work,  it  was  held  that  the  State 
Legislature  was  warranted  in  finding  that  there  was  as  to 
women  a  peculiar  hazard  to  health,  if  the  hours  were  not  re- 
stricted. This  is  the  scope  and  limit  of  that  decision.  The 
Court  said  :39 

"That  woman's  physical  structure  and  the  performance 
of  maternal  functions  place  her  at  a  disadvantage  in  the 
struggle  for  subsistence  is  obvious.  This  is  especially  true 
when  the  burdens  of  motherhood  are  upon  her.  Even  when 
they  are  not,  by  abundant  testimony  of  the  medical  fra- 
ternity, continuance  for  a  long  time  on  her  feet  at  work, 
respecting  this  from  day  to  day,  tends  to  injurious  effects 
upon  the  body,  and,  as  healthy  mothers  are  essential  to 
vigorous  offsprings,  the  physical  wellbeing  of  woman  be- 
comes an  object  of  public  interest  and  care  in  order  to 

39  Muller  vs.  Oregon,  208  U.  S.,  412,  421-23. 


52 

preserve  the  strength  and  vigor  of  the  race. 

"{Still  again,  history  discloses  the  fact  that  woman  has 
always  been  dependent  upon  man.  He  established  his  con- 
trol at  the  outset  by  superior  physical  strength,  and  this 
control  in  various  forms,  with  diminishing  intensity,  has 
continued  to  the  present.  As  minors,  though  not  to  the 
same  extent,  she  has  been  looked  upon  in  the  courts  as 
needing  especial  care  that  her  rights  may  be  preserved. 
Education  was  long  denied  her,  and  while  now  the  doors 
of  the  schoolroom  are  opened  and  her  opportunities  for 
acquiring  knowledge  are  great,  yet  even  with  that  and  the 
consequent  increase  of  capacity  for  business  affairs  it  is 
still  true  that  in  the  struggle  for  subsistence  she  is  not  an 
equal  competitor  with  her  brother.  Though  limitations 
upon  personal  and  contractual  rights  may  be  removed  by 
legislation,  there  is  that  in  her  disposition  and  habits  of 
life  which  will  operate  against  a  full  assertion  of  those 
rights.  She  will  still  be  where  some  legislation  to  protect 
her  seems  necessary  to  secure  a  real  equality  of  right. 
Doubtless  there  are  individual  exceptions,  and  there  are 
many  respects  in  which  she  has  an  advantage  over  him; 
but  looking  at  it  from  the  viewpoint  of  the  effort  to  main- 
tain an  independent  position  in  life,  she  is  not  upon  an 
equality.  Differentiated  by  these  matters  from  the  other 
sex,  she  is  properly  placed  in  a  class  by  herself,  and  legis- 
lation designed  for  her  protection  may  be  sustained,  even 
when  like  legislation  is  not  necessary  for  men,  and  could 
not  be  sustained.  It  is  impossible  to  close  one's  eyes  to 
the  fact  that  she  still  looks  to  her  brother  and  depends 
upon  him.  Even  though  all  restrictions  on  political,  per- 
sonal and  contractual  rights  were  taken  away,  and  she 
stood,  so  far  as  statutes  are  concerned,  upon  an  absolutely 
equal  plane  with  him,  it  would  still  be  true  that  she  is  so 
constituted  that  she  will  rest  upon  and  look  to  him  for 
protection;  that  her  physical  structure  and  a  proper  dis- 
charge of  her  maternal  functions  —  having  in  view  not 
merely  her  own  health,  but  the  wellbeing  of  the  race- 
justify  legislation  to  protect  her  from  the  greed  as  well  as 
the  passion  of  man.  The  limitations  which  this  statute 
places  upon  her  contractual  powers,  upon  her  right  to 
agree  with  her  employer  as  to  the  time  she  shall  labor,  are 
not  imposed  solely  for  her  benefit,  but  also  largely  for 
the  benefit  of  all.  Many  words  cannot  make  this  plainer. 
The  two  sexes  differ  in  structure  of  body,  in  the  functions 
to  be  performed  by  each,  in  the  amount  of  physical 
strength,  in  the  capacity  for  long  continued  labor,  par- 
ticularly when  done  standing,  the  influence  of  vigorous 


58 

health  upon  the  future  wellbeing  of  the  race,  the  self-reli- 
ance which  enables  one  to  assert  full  rights,  and  in  the 
capacity  to  maintain  the  struggle  for  subsistence.  This 
difference  justifies  a  difference  in  legislation,  and  upholds 
that  which  is  designed  to  compensate  for  some  of  the  bur- 
dens which  rest  upon  her. 

"We  have  not  referred  in  this  discussion  to  the  denial 
of  the  elective  franchise  in  the  State  of  Oregon,  for  while 
that  may  disclose  a  lack  of  political  equality  in  all  things 
with  her  brother,  that  is  not  of  itself  decisive.  The  reason 
runs  deeper,  and  rests  in  the  inherent  difference  between 
the  two  sexes,  and  in  the  different  functions  in  life  which 
they  perform. 

"For  these  reasons,  and  without  questioning  in  any  re- 
spect the  decision  in  Lochner  v.  New  York,  we  are  of  the 
opinion  that  it  cannot  be  adjudged  that  the  act  in  question 
is  in  conflict  with  the  Federal  Constitution,  so  far  as  it 
respects  the  work  of  a  female  in  a  laundry,  and  the  judg- 
ment of  the  Supreme  Court  of  Oregon  is  affirmed." 

• 
THE  CASE  OF  NOBLE  STATE  BANK  v.  HASKELL_,  219  U.  S.  104. 

It  is  now  a  little  over  three  years  since  the  question  of  the 
extent  of  the  police  power  of  the  state  was  discussed  by  the 
Federal  Supreme  Court  in  the  case  of  Noble  State  Bank  v.  Has- 
kell.  Since  then,  two  sentences,  picked  out  of  that  decision  and 
disconnected  with  their  context  or  application,  have  been 
quoted  as  supporting  every  extreme  theory  repugnant  to  the 
fundamental  principles  of  our  constitutional  system  of  govern- 
ment. They  have  been  the  solace  and  plaything  of  visionaries. 
They  have  been  put  forward  as  authoritative  support,  from  the 
highest  judicial  tribunal,  of  every  political  vagary  which  has 
been  advanced  since  they  were  uttered.  From  them  the  social- 
ist claims  not  only  justification  for  his  creed,  but  also  a  promise 
of  the  effective  accomplishment  of  his  ends,  and  this,  too,  by 
the  instruments  by  which  he  has  said  he  would  work  out  those 
ends;  because,  under  his  construction,  they  would  compel  all 
constitutional  protection  to  property  to  yield  to  the  forces  of  a 
"preponderant  opinion."  The  pseudo-reformer  who  confounds 
change  with  progress  cites  these  excerpted  sentences  as  author- 
ity in  favor  of  his  proposition  to  do  away  with  all  constitu- 
tional safeguards  and  to  turn  every  judge  and  every  judicial 
decision  over  to  the  arbitrary  caprice  of  a  temporary  majority. 


54 

Every  possible  change  in  the  administration  of  the  law  or  in 
our  system  of  government  is  advanced  not  only  as  justifiable, 
but  as  feasible  and  consistent  with  constitutional  law;  because, 
as  it  is  alleged,  these  excerpts  extend  the  limits  of  the  police 
power  as  theretofore  established  and  make  the  police  power 
of  the  respective  states,  without  limit,  paramount  to  every  other 
constitutional  consideration. 

In  the  same  way  they  are  cited  by  advocates  of  the  constitu- 
tionality of  the  minimum  wage  statute  as  involving  a  new  doc- 
trine with  regard  to  the  police  power  in  accordance  with  which 
all  objections  to  the  constitutionality  of  that  statute  are  over- 
come.40 

These  sentences  are,  in  the  words  of  Justice  Holmes,  who 
wrote  the  decision : 

"It  may  be  said  in  a  general  way  that  the  police  power 
extends  to  all  the  great  public  needs.  It  may  be  put  forth 
in  aid  of  what  is  sanctioned  by  usage,  or  held  by  the  pre- 
vailing morality  or  strong  and  preponderant  opinion  to 
be  greatly  and  immediately  necessary  to  the  public  wel- 
fare."41 

I  have  often  thought  how  Justice  Holmes,  when  he  hears  the 
attempted  application  of  these  sentences,  must  yearn  to  divest 
himself  for  a  time  of  his  judicial  position,  which  prohibits  his 
answering  directly  the  many  distortions  and  misapplications 
of  these  phrases,  and  to  answer  personally  some  of  the  claims 
which  are  made  with  regard  to  them.  I  venture  the  surmise 
that  already,  if  we  would  read  between  the  lines,  he  has  sug- 
gested some  such  answer  in  his  speech  less  than  a  year  ago 
when  he  inveighed  against  any  policy  founded  upon  an  unrea- 
sonable misapprehension  of  the  significance  of  free  competition 
in  business,  of  private  ownership  and  of  private  investments. 
He  said  :42 

"We  are  apt  to  think  of  ownership  as  a  terminus,  not 
as  a  gateway ;  and  not  to  realize  that,  except  the  tax  levied 
for  personal  consumption,  large  ownership  means  invest- 
ment, and  investment  means  the  direction  of  labor  toward 
the  production  of  the  greatest  returns,  returns  that  so  far 

40  Report  Massachusetts   Commission  on   Minimum  Wage   Boards,   1912,   page 
24;  and  "Minimum  Wage  Legislation,"  by  John  A.  Ryan,  Catholic  World,  Febru- 
ary, 1913. 

41  Noble  State  Bank  vs.  Haskell.  219  U.  S.,  page  104,  111. 

42  Speech  of  Mr.  Justice  Holmes  at  dinner  of  the  Harvard  Law  Association  of 
New  York,  Feb.  15,  1913,  S.  Doc.  No.  1106,  62d  Cong.,  3d  Sess. 


55 

as  they  are  great  show  by  that  very  fact  that  they  are 
consumed  by  the  many,  not  alone  by  the  few.  If  I  might 
ride  a  hobby  for  an  instant,  I  should  say  we  need  to  think 
things  instead  of  words;  to  drop  ownership,  money,  etc., 
and  to  think  of  the  stream  of  products,  of  wheat  and  cloth 
and  railway  travel.  When  we  do,  it  is  obvious  that  the 
many  consume  them ;  that  they  now  as  truly  have  substan- 
tially all  there  is  as  if  the  title  were  in  the  United  States; 
that  the  great  body  of  property  is  socially  administered 
now ;  and  that  the  function  of  private  ownership  is  to  divine 
in  advance  the  equilibrium  of  social  desires  which  social- 
ism equally  would  have  to  divine,  but  which  under  the 
delusion  of  self-seeking  is  more  poignantly  and  shrewdly 
foreseen." 

What  Justice  Holmes  said  in  the  Oklahoma  Bank  case  was 
no  new  doctrine  of  the  police  power,  nor  a  rule  extending  any 
former  doctrine.  As  he  protests  (in  his  opinion  denying  rear- 
gument)  : 

"The  analysis  of  the  police  power,  whether  correct  or  not, 

was  intended  to  indicate  an  interpretation  of  what  has 

taken  place  in  the  past,  not  to  give  a  new  or  wider  scope 

to  the  power.  "42a 

In  former  cases  the  Supreme  Court,  speaking  through  Jus- 
tice Holmes  and  through  Justice  Brewer,  had  said  what  was 
intended  to  be  the  same,  and  to  have  the  same  application,  as 
was  stated  by  Justice  Holmes  in  the  Oklahoma  case.  In  the 
Lochner  case,  Justice  Holmes  had  said:43 

"A  constitution  is  not  intended  to  embody  a  particular 
economic  theory,  whether  of  paternalism  and  the  organic 
relation  of  the  citizen  to  the  State  or  of  laissez  faire.  It  is 
made  for  people  of  fundamentally  differing  views,  and  the 
accident  of  our  finding  certain  opinions  natural  and  famil- 
iar or  novel  and  even  shocking  ought  not  to  conclude  our 
judgment  upon  the  question  whether  statutes  embodying 
them  conflict  with  the  Constitution  of  the  United  States. 
"General  propositions  do  not  decide  concrete  cases.  The 
decision  will  depend  on  a  judgment  or  intuition  more  subtle 
than  any  articulate  major  premise.  But  I  think  that  the 
proposition  just  stated,  if  it  is  accepted,  will  carry  us  far 
toward  the  end.  Every  opinion  tends  to  become  a  law.  I 

42a  219  U.  S.,  p.  580. 

43  Lochner  vs.  New  York,  198  U.  S.  45,  75-6. 


56 

think  that  the  word  liberty  in  the  Fourteenth  Amendment 
is  perverted  when  it  is  held  to  prevent  the  natural  out- 
come of  a  dominant  opinion,  unless  it  can  be  said  that  a 
rational  and  fair  man  necessarily  would  admit  that  the 
statute  proposed  would  infringe  fundamental  principles 
as  they  have  been  understood  by  the  traditions  of  our  peo- 
ple and  our  law.  It  does  not  need  research  to  show  that 
no  such  sweeping  condemnation  can  be  passed  upon  the 
statute  before  us.  A  reasonable  man  might  think  it  a 
proper  measure  on  the  score  of  health." 

Again,  with  reference  to  the  claim  that  a  woman's  peculiar 
physical  structure  and  duties  would  make  an  employment  in 
which  she  is  required  to  stand  for  long  hours  hazardous  and 
peculiarly  hazardous  to  her  as  a  woman,  Justice  Brewer  had 
said  :44 

"The  legislation  and  opinions  referred  to  in  the  margin 
may  not  be,  technically  speaking,  authorities,  and  in  them 
is  little  or  no  discussion  of  the  constitutional  question  pre- 
sented to  us  for  determination,  yet  they  are  significant  of  a 
widespread  belief  that  woman's  physical  structure,  and  the 
functions  she  performs  in  consequence  thereof,  justify  spe- 
cial legislation  restricting  or  qualifying  the  conditions 
under  which  she  should  be  permitted  to  toil.  Constitu- 
tional questions,  it  is  true,  are  not  settled  by  even  a  con- 
sensus of  present  public  opinion,  for  it  is  the  peculiar  value 
of  a  written  constitution  that  it  places  in  unchanging  form 
limitations  uppn  legislative  action,  and  thus  gives  a  per- 
manence and  stability  to  popular  government  which  other- 
wise would  be  lacking.  At  the  same  time,  when  a  question 
of  fact  is  debated  and  debatable,  and  the  extent  to  which 
a  special  constitutional  limitation  goes  is  affected  by  the 
truth  in  respect  to  that  fact,  a  widespread  and  long  con- 
tinued belief  concerning  it  is  worthy  of  consideration.  We 
take  judicial  cognizance  of  all  matters  of  general 
knowledge." 

The  decision  in  the  case  of  Muller  v.  Oregon  expressly  con- 
firms the  principle  and  the  holding  of  the  both  opinions  in 
the  case  of  Lochner  vs.  New  York.  The  decision  in  the  Okla- 
homa case  of  Noble  State  Bank  vs.  Haskell  expressly  confirms 
the  principle  and  holding  in  both  these  former  cases,  and  in 
others. 

44  Muller  vs.  Oregon,  208  U.  S.(  412,  420-1. 


57 

There  was  no  new  principle  and  no  extension  of  former  prin- 
ciples announced  nor  intended  to  be  announced  in  the  Okla- 
homa Bank  case.  The  question  there  was  as  to  the  police 
power  of  the  State  of  Oklahoma  to  regulate  banking  within  the 
state  and  to  provide  guaranties  under  the  authority  of  the 
State  and  under  its  direction  against  the  insolvency  of  banks 
organized,  maintained  and  operated  with  the  sanction  and 
under  the  authority  of  the  State.  It  was  held  that  the  com- 
pulsory assessments,  for  the  purpose  of  making  up  the  guaranty 
fund,  provided  to  be  paid  by  the  various  banking  institutions 
were,  under  all  the  circumstances,  within  the  police  power  of 
the  State.45 

There  is  absolutely  nothing  in  that  case  from  which  it  can 
be  argued  that  it  is  within  the  police  power  of  a  State  to  com- 
pel the  payment  of  a  minimum  wage  in  connection  with  em- 
ployment in  any  occupation,  without  distinction  as  to  kind, 
and  especially  when  the  basis  of  the  attempted  exercise  of  the 
police  power  is  merely  a  personal  need, — having  no  relation 
to  the  occupation  or  employment  itself, — of  the  employe. 


A  LEGISLATIVE  MINIMUM  WAGE  FOB  PRIVATE  EMPLOYMENT 
Is  UNCONSTITUTIONAL. 

Having  shown  that  the  authorities  cited  in  support  of  a  legis- 
lative minimum  wage  do  not  furnish  any  such  support,  but 
rather  the  contrary,  I  next  cite  authorities  expressly  passing 
upon  minimum  wage  statutes. 

The  Legislature  of  Indiana  passed  an  act  prohibiting  under 
penalty  any  employer  engaged  upon  public  work  of  the  state, 
counties,  cities  or  towns  from  paying  for  any  unskilled  labor 
less  than  twenty  cents  an  hour.  The  Supreme  Court  of  Indiana 
held  the  act  unconstitutional  as  infringing  the  liberty  of  the 
citizen,  that  it  was  class  legislation,  and  had  the  effect  to  de- 
prive the  employer  of  his  liberty  and  property  without  due 
process  of  law,  and  denied  to  him  the  equal  protection  of  the 
laws.  The  question  in  this  case  was  different  from  that  de- 
cided in  the  case  of  Atkin  vs.  Kansas,  191  U.  S.,  207.  There  the 
only  question  was  the  right  to  legislate  as  to  hours  of  employes 

45  Noble  State  Bank  vs.  Haskell,  219  U.  S.,  104. 


58 

engaged  in  public  work,  irrespective  of  the  hazards  of  the  work. 
This,  as  we  have  seen,  was  decided  on  grounds  independent  of 
any  question  of  police  power,  but  was  based  solely  on  the  power 
of  the  State  to  legislate  as  to  the  terms  and  conditions  under 
which  work  for  itself, — that  is,  public  work — should  be  done. 
The  Washington  Supreme  Court,  in  the  case  of  Malette  vs.  Spo- 
kane, decided  December  31,  1913,  as  we  have  seen,  extended 
that  rule  to  a  minimum  wage  for  laborers  employed  in  public 
work.  The  Indiana  Supreme  Court,  however,  refused  to  extend 
the  application  of  the  rule  in  Atkin  vs.  Kansas  to  a  compulsory 
minimum  wage  in  public  work.  It  will  be  for  the  Supreme 
Court  of  the  United  States  to  say  which  of  these  two  state 
courts  has  been  right  in  regard  to  these  decisions.  The  ques- 
tion of  the  minimum  wage  even  in  public  work  has  not  yet  been 
decided  by  the  Federal  Supreme  Court.  It  is  certain  that  if 
that  court  should  sustain  the  Washington  decision,  or  reverse 
the  Indiana  decision,  it  will  be  on  the  ground  that  because  the 
employment  involved  is  public  work,  there  is  no  question  in- 
volved as  to  police  power,  and  this  for  the  same  reasons  as 
stated  in  the  case  of  Atkin  vs.  Kansas.  Accordingly,  then, 
though  the  Federal  Supreme  Court  shall  sustain  the  power  of 
the  State  to  fix  a  minimum  wage  in  public  work,  such  decision 
will  in  no  wise  support  the  claim  of  the  right  of  the  State  to 
fix  a  minimum  wage  in  private  employment.  On  the  other  hand, 
if  the  Federal  Supreme  Court  shall  refuse  to  confirm  such 
power  in  the  State,  it  will  be  for  the  reason  that  a  minimum 
wage,  even  for  public  work,  does  not  come  within  the  power  of 
the  State,  either  as  controlling  to  that  extent  its  own  contracts, 
or  under  any  proper  exercise  of  police  power. 

The  Indiana  Supreme  Court  approached  the  question  as 
though  it  stood  upon  the  same  ground  as  would  a  legislative 
minimum  wage  in  private  employment.  We  have,  therefore, 
in  the  decision  of  the  Indiana  Supreme  Court,  the  views  of  the 
highest  court  of  one  of  the  states  with  respect  to  the  power  of 
the  State  to  fix  the  minimum  wage  in  private  employment.  In 
deciding  that  such  attempted  exercise  of  power  was  unconsti- 
tutional, and  did  not  come  within  the  proper  exercise  of  the 
State's  police  power,  the  Indiana  Court  said  :46 


46  Street  vs.  Varney  Electrical  Co.,  160  Ind.,  338. 


59 

"If  the  legislature  has  the  right  to  fix  the  minimum  rate 
of  wages  to  be  paid  for  common  labor,  then  it  has  the  power 
to  fix  the  maximum  rate.  And  if  it  can  regulate  the  price 
of  labor,  it  may  also  regulate  the  prices  of  Hour,  fuel,  mer- 
chandise, and  land.  But  these  are  powers  which  have  never 
been  conceded  to  the  legislature,  and  their  exercise  by  the 
state  would  be  utterly  inconsistent  with  our  ideas  of  civil 
liberty.  Among  the  most  odious  and  oppressive  laws  ever 
enacted  by  the  English  Parliament,  in  the  worst  of  times, 
were  the  statutes  of  labor  of  Hen.  VI  and  Edw.  III.  These 
enactments  fixed  a  maximum  rate  of  wages  for  the  laboring 
man,  prohibited  him  from  seeking  employment  outside  of 
his  own  country,  required  him  to  work  for  the  first  em- 
ployer who  demanded  his  services,  and  punished  every  vio- 
lation of  the  statute  with  severe  penalties.  In  the  very 
nature  and  constitution  of  things,  legislation  which  inter- 
feres with  the  operation  of  natural  and  economic  laws  de- 
feats its  own  object,  and  furnishes  to  those  whom  it  pro- 
fesses to  favor  few  of  the  advantages  expected  from  its  pro- 
visions. The  circumstance  that  the  act  of  March  9,  1901, 
reverses  the  conditions  of  the  statutes  of  labor  of  Hen.  VI 
and  Edw.  Ill,  and  lays  the  burden  and  the  penalty  upon 
the  employer  instead  of  the  laborer,  does  not  render  it  any 
less  pernicious  and  objectionable  as  an  invasion  of  natural 
and  constitutional  rights.  Statutes  similar  to  this  have 
been  before  the  courts  of  other  states,  and  in  nearly  every 
instance  have  been  held  unconstitutional.  People,  ex  rel.y 
Rodgers  v.  Coler,  166  N.  Y.  1,  52  L.  R.  A.  814,  59  N.  E. 
716;  State,  ex  rel.,  Bramley  v.  Norton,  5  Ohio,  N.  P.  183; 
Com.  v.  Perry,  155  Mass.  117,  14  L.  R.  A.  325,  28  N.  E. 
1126;  Ramsey  v.  People,  142  111.  380,  17  L.  R.  A.  853,  32  N. 
E.  364;  Jones  v.  Great  Southern  Fireproof  Hotel  Co.,  79 
Fed.  477 ;  State  v.  Julow,  129  No.  163,  29  L.  R.  A.  257,  31 
S.  W.  781;  Shaver  v.  Pennsylvania  Co.,  71  Fed.  931;  At- 
kins v.  Randolph,  31  Vt.  237 ;  Palmer  v.  Tingle,  55  Ohio  St. 
423,  45  N.  E.  313 ;  Cleveland  v.  Clements  Bros.  Constr.  Co., 
67  Ohio  St.  197,  59  L.  R.  A.  775,  65  N.  E.  885. 

"The  statute  of  March  9,  1901,  is  obnoxious  to  the  fur- 
ther objection  that  through  its  operation  a  citizen  may  be 
deprived  of  his  property  without  due  process  of  law.  If  the 
minimum  price  to  be  paid  by  municipal  subdivisions  of  the 
state  for  unskilled  labor  on  public  works  exceeds  the  rate 
at  which  such  labor  can  be  obtained  by  other  persons  at  the 
same  place,  then  the  excess  so  paid  for  labor  on  public  im- 
provements is  taken  from  the  citizens  assessed  for  such 
works,  not  by  due  process  of  law,  but  by  a  mere  legislative 


60 

fiat.  The  citizens  of  the  state,  who  must,  through  assess- 
ments made  upon  their  property,  pay  for  the  public  works 
of  counties,  cities,  and  towns,  are  entitled  to  have  such 
work  done  at  such  rate  of  wages  as  the  local  agents  and 
official  representatives  of  such  municipal  subdivisions  of 
the  state  may  be  able  to  secure  by  contract.  They  cannot 
be  required  arbitrarily  to  pay  higher  wages  than  laborers 
employed  on  private  works  or  improvements  in  their  par- 
ticular district  demand,  any  more  than  they  could  be  com- 
pelled by  similar  legislation  to  pay  a  minimum  rate  of 
wages  to  laborers  employed  by  them  in  their  private  busi- 
ness. If  the  minimum  rate  fixed  by  the  statutes  exceeds 
the  market  value  of  such  wages,  the  excess  is  a  mere  do- 
nation exacted  under  color  of  law  from  the  citizens  liable 
to  assessment  for  the  public  improvement,  and  bestowed 
upon  the  unskilled  laborer.  Public  revenues  cannot  be  ap- 
plied in  this  way.  McClelland  v.  State,  138  Ind.  321,  37 
N.  E.  1089;  State  ex  rel.,  Tieman  v.  Indianapolis,  69  Ind. 
375,  35  Am.  Eep.  223 ;  Warner  v.  Curran,  75  Ind.  309. 

Lastly,  we  think  the  statute  obnoxious  to  the  objection 
of  class  legislation.  In  fixing  the  minimum  rate  of  wages 
to  be  paid  for  unskilled  labor  to  be  employed  by  counties, 
cities,  and  towns,  on  public  improvements,  a  classification 
is  made  which  is  unnatural  and  unconstitutional.  The  la- 
boring men  of  the  state  may,  for  some  purposes,  constitute 
a  class  concerning  which  particular  legislation  may  be 
proper.  This  classification  has  been  recognized  and  sus- 
tained in  statutes  requiring  the  payment  of  wages  in  law- 
ful money  of  the  United  States,  forbidding  the  assignment 
of  future  and  unearned  wages,  and  in  similar  acts.  But 
no  legal  and  sufficient  reason  can  be  assigned  for  placing 
unskilled  labor  in  a  class  by  itself  for  the  purpose  of  fix- 
ing by  law  the  minimum  rate  of  wages  at  which  it  shall  be 
employed  by  counties,  cities,  and  towns  on  their  public 
works.  Why  exclude  the  skilled  mechanic  from  the  benefits 
of  the  act?  Why  compel  the  payment  of  a  higher  rate  of 
wages  to  the  unskilled  laborer  than  may  be  demanded  by 
the  skilled  mechanic  for  more  difficult  and  important  work, 
requiring  special  training,  experience,  and  a  higher  degree 
of  intelligence?  Unless  the  Legislature  has  the  power  to 
fix  the  minimum  rate  of  wages  to  be  paid  by  counties,  cit- 
ies, and  towns  to  carpenters,  stone  masons,  brick  layers, 
plumbers,  and  painters  emploved  on  local  improvements, 
treating  each  trade  as  a  separate  class,  it  has  not  the  power 
to  enact  laws  fixing  the  compensation  of  unskilled  laborers 
employed  on  similar  works.  No  sufficient  reason  has  been 


61 

assigned  why  the  wages  of  the  unskilled  laborer  should  be 
fixed  by  law,  and  maintained  at  an  unalterable  rate,  re- 
gardless of  their  actual  value,  and  that  all  other  laborers 
should  be  left  to  secure  to  themselves  such  compensation 
for  their  work  as  the  conditions  of  supply  and  demand, 
competition,  personal  qualities,  ener^v,  skill,  and  experi- 
ence may  enable  them  to  do. 

After  the  most  careful  and  thorough  examination  of  all 
the  questions  of  law  presented  by  the  demurrer  in  this 
case,  we  are  satisfied  that  the  ruling  of  the  lower  court 
was  not  erroneous,  and  its  judgment  is  therefore  affirmed." 

The  highest  authority  on  the  law  of  Master  and  Servant,  after 
a  consideration  of  all  the  modern  arguments  for  and  against 
a  minimum  wage  in  private  employment,  holds  that  there  is  no 
authority  or  power  in  a  State  to  establish  or  enforce  such  a 
wage  :47 

"In  the  American  States  it  would  seem  that  no  legisla- 
tion of  this  type  has  ever  been  enacted,  except  with  respect 
to  public  employments.  So  far  as  respects  work  in  which 
neither  the  state  itself  nor  any  political  subdivision  there- 
of is  concerned,  there  can  be  no  reasonable  doubt  that,  even 
where  the  matter  is  not  covered  by  an  explicit  provision 
in  an  organic  law,  a  restrictive  statute  would,  under  the 
general  principles  of  American  constitutional  jurispru- 
dence, be  treated  by  the  courts  as  invalid,  whatever  might 
be  the  nature  of  the  business  affected.' ' 

Judge  Cooley,  the  greatest  authority  of  modern  times,  on  con- 
stitutional limitations,  says:48 

"In  the  early  days  of  the  Common  Law,  it  was  sometimes 
thought  necessary  in  order  to  prevent  extortion  to  inter- 
fere by  royal  proclamation  or  otherwise,  and  establish  the 
charges  that  might  be  exacted  for  certain  commodities  or 
services.  The  price  of  wages  was  oftener  regulated  than 
that  of  anything  else,  the  local  magistrates  being  generally 
allowed  to  exercise  authority  over  the  subject.  The  prac- 
tice was  followed  in  this  country  and  prevailed  to  some 
extent  up  to  the  time  of  independence.  Since  then  it  has 
been  commonly  supposed  that  a  general  power  in  the  state 
to  regulate  prices  was  inconsistent  with  constitutional  lib- 
erty." 

47  Labatt's  Master  and  Servant,  Section  846,  page  2285. 

48  Cooley's  Constitutional  Limitations,  page  820. 


62 

The  establishment  of  the  right  to  regulate  prices  in  a  certain 
public  or  quasi-public  enterprise  operated  under  grants  from 
the  State,  furnishes  no  parallel.  In  such  cases,  so  far  as  pri- 
vate property  is  affected,  the  private  property  is  used  under  a 
public  grant  and  for  that  reason  subjected  to  regulation  by  the 
State,  including  the  regulation  of  rates.  The  public,  through 
the  State,  has  a  certain  interest  carrying  with  it  the  right  of 
control  necessary  to  regulate  such  rates.  Before  the  adoption 
of  the  Fourteenth  Amendment,  this  right  in  the  State  was  car- 
ried to  an  extreme  in  fixing  maximum  charges,  and  even  at  ar- 
bitrary rates,  for  all  classes  of  industries.  But  with  reference 
to  such  regulations,  the  Federal  Supreme  Court  has  said  :49 

"Down  to  the  time  of  the  adoption  of  the  Fourteenth 
Amendment  it  was  not  supposed  that  statutes  regulating 
the  use  or  even  the  price  of  the  use  of  private  property  nec- 
essarily deprived  an  owner  of  his  property  without  due 
process  of  law.  Under  some  circumstances  they  may,  but 
not  in  all.  *  *  *  This  brings  us  to  inquire  as  to  the  prin- 
ciples upon  which  this  power  of  regulation  rests,  in  order 
that  we  may  determine  what  is  within  and  without  its  op- 
erative effect.  Looking  then  to  the  common  law  from 
whence  came  the  right  which  the  Constitution  protects,  we 
find  that  when  private  property  is  affected  with  a  public 
interest,  it  ceases  to  be  -juris  privati  only.  *  *  *  When  one 
devotes  his  property  to  a  use  in  which  the  public  has  an  in- 
terest, he,  in  effect,  grants  to  the  public  an  interest  in  the 
use  and  must  submit  to  be  controlled  by  the  public  for  the 
common  good  to  the  extent  of  the  interest  he  has  thus 
created.  He  may  withdraw  Ms  grant  ~by  discontinuing  the 
use." 

Certainly  the  occupations  of  the  merchant,  wholesale  or  re- 
tail, and  other  occupations  made  subject  to  the  minimum  wage 
statutes,  are  not  of  the  class  specified  by  Judge  Cooley  as  being 
subject  to  price  regulation,  either  in  the  form  of  minimum  wage 
regulation,  or  otherwise. 

AMENDMENT  OF  A,  STATE  CONSTITUTION  AUTHORIZING  A  MINI- 
MUM WAVE  IN  PRIVATE  EMPLOYMENT,  DOES  NOT  DO  AWAY 
WITH  CONSTITUTIONAL  OBJECTIONS. 

The  constitutional  objections  here  presented  to  a  legislative 
minimum  wage  in  private  employment  cannot  be  avoided  by 

49  Munn  vs.  Illinois,  94  U.  S.,  125. 


63 

mere  amendment  of  the  State  constitution  expressly  authoriz- 
ing the  enactment  by  the  State  Legislature  of  such  minimum 
wage.  The  legislative  minimum  wage  as  applied  to  private 
employment  necessarily  restricts  the  liberty  of  contract,  creates 
an  arbitrary  discrimination  between  one  class  and  another,  not 
only  of  employers,  but  also  of  employes,  and  compels  the  em- 
ployer to  contribute,  out  of  his  investment  and  out  of  his  earn- 
ings, for  the  benefit  of  employes  and  for  their  sustenance,  as 
well  as  for  the  general  public  benefit.  Such  statute,  therefore, 
contravenes  the  express  terms  of  the  Federal  Constitution,  pro- 
hibiting any  state  from  enforcing  any  law  which  deprives  a 
citizen  of  liberty  or  of  property  without  due  process  of  law,  or 
which  denies  to  any  citizen  the  equal  protection  of  the  laws. 
If  such  prohibition  is  also  incorporated  in  a  State  constitution, 
a  legislative  minimum  wage  statute  contravenes  both  the  State 
and  the  Federal  Constitutions.  If  the  State  Constitution  is 
changed  so  as  to  permit  by  terms  the  minimum  wage,  that  means 
that  its  repugnancy  to  the  State  constitution  is  alone  removed. 
The  Federal  prohibition  still  remains,  and  is  the  supreme  law 
of  the  land,  which  it  is  the  duty  of  all  the  courts,  Federal  or 
State,  and  a  duty  imposed  upon  all  State  and  Federal  Judges 
under  express  oath,  to  recognize  and  to  enforce.50 

These  Constitutional  obstacles  are  recognized  by  all  intelli- 
gent writers  and  advocates  in  favor  of  the  legislative  minimum 
wage  in  private  employment.51 

The  recognition  of  this  constitutional  prohibition  induced 
Massachusetts  and  Nebraska  to  make  their  minimum  wage  stat- 
utes non-compulsory.  The  states  of  California  and  Ohio  amend- 
ed their  constitutions,  either  on  the  theory  that  such  amend- 
ments solved  the  constitutional  difficulty  presented,  or  was  a 
necessary  step  in  connection  with  inserting  a  minimum  wage 
amendment  in  the  Federal  Constitution. 

It  is  safe  to  assume  that  neither  the  "due  process  of  law" 
clause,  nor  the  "equal  protection  of  the  laws"  clause  will  be 
eliminated  by  amendment  from  the  Federal  Constitution.  Such 
amendment,  however,  would  be  necessary  in  order  to  permit  a 

60  Article  VI,  United  States  Constitution. 

51  "A  Living  Wage,"  by  John  A.  Ryan,  page  313.  Also,  Annals  American 
Academy  Political  and  Social  Science,  July,  1913:  "The  Minimum  Wage  as  a  Legis- 
lative Proposal  in  the  United  States,"  by  Prof.  Lindsay,  pages  45,  48;  and  "The 
Minimum  Wage  in  Great  Britain  and  Australia,"  by  Prof.  Hammond,  22,  25. 


64 

legislative  minimum  wage  statute  in  any  state,  unless  a  specific 
amendment  to  the  Federal  Constitution  be  made,  expressly  per- 
mitting a  State  to  enact  a  minimum  wage.  Without  such 
amendment,  it  avails  nothing  to  amend  a  State  constitution; 
for  the  Federal  prohibition  against  legislation  by  the  states  ap- 
plies to  State  constitutions,  as  well  as  to  State  statutes.  The 
question  of  repugnancy  to  Federal  limitation  is  determined  by 
the  question  whether  a  State  statute  or  a  State  constitutional 
provision,  one  or  both,  when  enforced,  has  the  effect  to  contra- 
vene the  prohibitions  of  the  Federal  Constitution.  In  case  of 
such  contravention,  a  State  Constitutional  provision,  as  well 
as  a  State  statute,  must  be  held  void.52 

As  stated  by  the  United  States  Supreme  Court : 

"Upon  the  adoption  of  the  Fourteenth  Amendment,  what- 
ever their  own  constitutions  may  have  ~been,  or  have  sub- 
sequently declared — the  states  became  bound,  as  was  the 
United  States  by  the  Fifth  Amendment,  not  to  deprive  any 
person  of  property  without  due  process  of  law."53 

But  there  are  special  features  of  the  Minnesota  statute  which 
make  it  further  obnoxious  to  constitutional  objection.  Some 
of  these  are  next  discussed. 


THE  MINNESOTA  STATUTE  PROVIDES  FOR  No  HEARING  FOR  THE 
EMPLOYER  AFFECTED. 

One  of  the  established  requisites  of  a  decree  or  order  compul- 
sory against  a  person,  with  a  penalty  for  a  breach,  is  that,  in 
order  that  such  decree  or  order  shall  be  binding  upon  him,  he 
shall  have  the  opportunity  of  a  proper  hearing  upon  notice,  and 
an  adjudication  in  proceedings  to  which  he  is  a  party.  The 
Minnesota  statute  in  question  in  substance  gives  to  the  Com- 
mission power  to  promulgate  and  have  enforced  its  order  es- 
tablishing a  minimum  wage  for  any  particular  employer  by  a 
course  of  proceedings  to  which  such  employer  is  a  stranger. 
The  only  provision  for  hearing  or  notice  to  the  employer  is 
(Sec.  6)  that  after  the  final  order  is  promulgated,  "a  copy  of 
such  order  shall  be  mailed,  so  far  as  practicable,  to  each  em- 

52  Bigelow  vs.  Draper,  6  N.  D.,  152. 

63  S.  W.  Oil  Co.  vs.  Texas.  217  U.  S.,  114,  119. 


65 

ployer  affected,"  and  "filed  with  the  Commissioner  of  Labor." 
Nevertheless,  whether  the  employer  receives  such  notice,  or  not, 
he  is  subject,  if  he  does  not  comply  with  the  order,  to  both  crim- 
inal and  civil  prosecution. 

More  than  that,  there  is  no  provision,  even  subsequent  to 
the  promulgation  of  such  order,  for  the  employer  to  have  de- 
termined the  question  of  legality  or  of  reasonableness  of  the 
wage  rate  established. 

It  would  not  seem  necessary  to  argue  that  such  provisions, 
independent  of  all  other  questions,  would  fail  to  constitute  due 
process  of  law. 

The  situation  is  entirely  different  from  that  of  a  legislative 
commission  establishing  rates  at  which  a  common  carrier  must 
do  business  for  the  public.  In  the  present  case,  a  commission 
presumes  to  establish  a  compulsory  payment,  not  to,  but  by,  a 
private  employer.  That  payment  is  of  the  nature  of  an  assess- 
ment against  an  individual  in  invitum,  the  amount  of  which  is 
determined  by  the  commission.  In  such  cases  the  individual 
bound  to  pay  the  assessment  must  be  a  party  to  the  proceedings 
by  which  its  amount  is  determined.  Otherwise,  he  cannot  be  com- 
pelled to  pay.  This  rule  has  been  established  by  the  Federal 
Supreme  Court.54 


THE  STATUTE  is  VOID,,  BECAUSE  IT  MAKES  THE  ORDER  OF  THE 
COMMISSION  FINAL  WITHOUT  THE  BIGHT  TO  REVIEW  BY  THE 
COURTS. 

Even  in  the  case  of  statutes  authorizing  Commissions  to  fix 
the  rates  of  public  service  corporations,  such  statutes  are  void, 
if  the  order  of  the  Commission  is  made  final,  without  review. 
Such  is  the  holding  of  the  Federal  Supreme  Court  in  the  case 
of  a  Minnesota  Statute  giving  the  State  Railway  and  Ware- 
house Commission  power  to  fix  railroad  rates  of  a  common  car- 
rier with  no  power  of  review  on  application  of  the  carrier.  Re- 
ferring to  the  statute,  the  Court  said  :55 

"It  conflicts  with  the  Constitution  of  the  United  States 
in  the  particulars  complained  of  by  the  railway  company. 

54  Central  of  Georgia  Ry.  Co.  vs.  Wright,  207  U.  S.,  127. 
65  Chicago,  etc.,  Ry.  Co.,  vs.  Minnesota.  134  U.  S.,  459. 


66 

It  deprives  the  company  of  its  right  to  a  judicial  investi- 
gation by  due  process  of  law  under  the  forms  and  with 
the  machinery  provided  by  the  wisdom  of  successive  ages 
for  the  investigation  judicially  of  the  truth  of  a  matter  in 
controversy  and  constitutes  therefore  as  an  absolute  fin- 
ality, the  action  of  a  railroad  commission,  which  in  view  of 
the  powers  conceded  to  it  by  the  state  court  cannot  be  re- 
garded as  clothed  with  judicial  functions  or  possessing  the 
machinery  of  a  court  of  justice.  *  *  *  The  question  of  the 
reasonableness  of  a  rate  or  charge  for  transportation  by 
a  railroad  company,  involving  as  it  does  the  element  of 
reasonableness  both  as  regards  the  company  and  as  regards 
the  public,  is  eminently  a  question  for  judicial  investiga- 
tion, requiring  due  process  of  law  for  its  determination. 
If  the  company  is  deprived  of  the  power  of  charging  reason- 
able rates  for  the  use  of  its  property  and  such  deprivation 
takes  place  in  the  absence  of  an  investigation  by  judicial 
machinery,  it  is  deprived  of  the  lawful  use  of  its  property 
and  thus,  in  substance  and  effect,  of  the  property  itself, 
without  due  process  of  law  and  in  violation  of  the  Consti- 
tution of  the  United  States;  and  insofar  as  it  is  thus  de- 
prived where  other  persons  are  permitted  to  receive  reason- 
able profits  upon  their  invested  capital,  the  company  is 
deprived  of  the  equal  protection  of  the  law." 

THE  STATUTE  DELEGATES  LEGISLATIVE  POWER. 

Tftfe  Commission  is  empowered  to  establish  a  minimum  wage 
rate  on  a  basis  which  is  in  effect  simply  the  arbitrary  dictum 
of  the  Commission.  There  is  no  reasonable  or  tangible  fixed 
basis  of  computation  by  which  the  Commission  is  bound.  The 
provision  that  such  minimum  wage  shall  be  a  living  wage,  and 
that  that  shall  mean  a  wage  "sufficient  to  maintain  the  worker 
in  health  and  supply  him  with  the  necessary  comforts  and  con- 
ditions of  reasonable  life,"  does  not  furnish  the  definiteness  of 
a  basis  for  computation,  requisite  to  avoid  the  objection  here 
made. 

Such  delegation  of  power  without  definite  provisions  as  to  its 
exercise,  is  void.  On  this  ground  the  Minnesota  Supreme  Court 
decided  that  a  delegation  of  power  to  the  State  Insurance  Com- 
missioner to  dictate  a  standard  form  of  insurance  policy,  con- 
forming to  the  New  York  Standard  Policy  "as  near  as  the  same 
can  be  made  applicable,"  was  void.56  The  basis  of  the  objection 

56  Anderson  vs.  Manchester  Fire  Assurance  Co.,  59  Minn.,  182. 


67 

to  the  delegation  of  such  legislative  power  is  stated  in  a  recent 
Wisconsin  case  where  the  court  said  :57 

"The  result  of  all  the  cases  on  this  subject  is  that  a  law 
must  be  complete,  in  all  its  terms  and  provisions,  when  it 
leaves  the  legislative  branch  of  the  government,  and  noth- 
ing must  be  left  to  the  judgment  of  the  electors  or  other 
appointees  or  delegate  of  the  legislature,  so  that,  in  form 
and  substance,  it  is  a  law,  in  all  its  details,  in  praesenti, 
but  which  may  be  left  to  take  effect  in  futuro  ,if  necessary, 
upon  the  ascertainment  of  any  prescribed  fact  or  event. 
Instead  of  preparing  a  form  of  standard  policy,  and  ad- 
justing it  to  the  existing  legislation,  or  modifying  such 
legislation,  if  necessary,  by  virtue  of  its  constitutional  func- 
tions, the  legislature  delivered  over  this  task  wholly  to  the 
insurance  commissioner,  to  accomplish  it  as  nearly  as 
might  be ;  and  this  depended  wholly  upon  his  discretion  and 
judgment  as  to  what  the  law  should  be  in  this  respect,  for 
the  act  had  not  specifically  declared  it.  Conceding  that  the 
legislature  must  have  adopted  the  New  York  form  as  an 
entirety,  by  the  use  of  general  language,  it  is  evident  that 
the  proposed  form,  to  conform  'as  near  as  can  be  to  the 
form  adopted  in  New  York/  involved  a  duty  equivalent  to 
that  of  revision,  which  it  cannot  be  contended  can  be  dele- 
gated except  to  legislative  approval.  While  the  commis- 
sioner, within  the  discretion  intrusted  to  him,  might  have 
approximated,  in  a  great  degree,  to  the  policy  which  the 
legislature  may  have  intended,  the  objection,  in  view  of  the 
consideration  stated,  that  it  has  not  received  the  legislative 
sanction,  is  necessarily  fatal  to  it.  *  *  *  For  these  rea- 
sons, we  hold  that  the  provision  authorizing  the  insurance 
commissioner  to  prepare,  approve,  and  adopt  a  printed 
form,  in  blank,  of  a  contract  or  policy  of  fire  insurance,  to- 
gether with  such  provisions,  agreements,  or  conditions,  as 
may  be  endorsed  thereon  or  added  thereto,  and  form  a  part 
of  such  contract  or  policy,  and  that  such  form  shall,  as  near 
as  the  same  can  be  made  applicable,  conform  to  the  type 
and  form  of  the  New  York  standard  fire  insurance  policy, 
so  called  and  known,  is  unconstitutional  and  void." 

Now,  this  minimum  wage  statute  fixes  no  standard  by  which 
it  can  be  determined  what  is  a  necessary  comfort,  nor  what  are 
the  "conditions  of  reasonable  life,"  nor  what  is  "sufficient  to 
maintain  the  worker  in  health."  What  is  necessary  for  one 
person,  is  not  necessary  for  another.  Standards  of  living  are 

67  Bowling  vs.  Lancashire  Ins.  Co.,  92  Wis.,  63. 


68 

recognized  to  be  different.  The  determination  of  the  wage  rests 
entirely  in  the  discretion  of  the  Commission.  So  far  as  such 
discretion  is  required,  it  is  a  legislative  discretion,  and  such 
discretion  cannot  be  delegated. 

THE  STATUTE  CREATES  DISCRIMINATION  (1)  BETWEEN  EM- 
PLOYERS OF  THE  SAME  CLASS;  (2)  BETWEEN  EMPLOYES  OF  THE 
SAME  CLASS;  (3)  RESTRICTS  THE  LIBERTY  OF  CONTRACT;  AND 
(4)  HAS  THE  EFFECT  TO  TAKE  THE  PROPERTY  OF  THE  EMPLOYER 
FOR  THE  BENEFIT  OF  OTHERS,, — ALL  CONTRARY  TO  CONSTITUTION- 
AL PROHIBITIONS. 

It  is  not  necessary  to  argue  further  in  detail  that  the  statute 
has  all  the  effects  just  enumerated.  Such  effect  of  the  statute 
is  assumed  by  all  who  argue  in  favor  of  its  constitutionality, 
and  who,  therefore,  base  the  power  of  the  State  to  make  and  en- 
force such  statute  on  the  police  power,  the  exercise  of  which  in 
proper  cases,  it  is  recognized,  may  have  the  effect,  indirectly  or 
in  some  instances  directly,  to  conflict  with  private  personal  or 
property  rights. 

It  should  be  kept  in  mind,  however,  that  these  discriminations 
and  damage  to  personal  and  property  rights,  arising  out  of  the 
enforcement  of  such  a  law,  are  not  merely  theoretical  but  are 
serious  and  may  be  disastrous  to  the  business  or  industry  af- 
fected. 

As  already  shown,  the  enforcement  of  such  a  statute,  by 
raising  the  normal  expense  account  of  the  employer  affected, 
creates  a  discrimination  against  him  and  in  favor  of  other  em- 
ployers in  the  same  occupation,  situated  not  only  in  other  lo- 
calities of  the  State,  if  the  rates  fixed  vary  in  different  locali- 
ties, but  also  in  favor  of  his  competitors  located  outside  of  the 
state  where  no  such  law,  or  where  a  different  rate  under  a  simi- 
lar law,  is  enforced.  There  results  a  tendency  to  depress  an 
industry  in  one  locality  as  against  a  similar  industry  in 
other  localities,  or  in  one  state  as  against  similar  in- 
dustries in  another  state.  The  depression  may  be  only  to  the 
extent  of  a  diminution  of  profits.  But  it  may,  and  in  many 
cases  probably  would,  extend  to  an  entire  deprivation  of  profits, 
and  therefore  the  closing  out  of  the  business  or  industry  affect- 
ed. Employers  whose  expenses  are  thus  increased  cannot  re- 


69 

coup  themselves  by  a  rise  in  prices,  because  of  competition  in 
localities  where  business  is  not  similarly  affected.  If  such  diffi- 
culties were  overcome  by  a  uniform  minimum  wage  law,  co- 
extensive with  the  markets  controlling  the  prices  of  the  product 
in  question,  then  the  cost  of  living  tends  to  increase  and  at  the 
same  time,  of  course,  the  standard  by  which  the  minimum  wage 
is  computed  also  rises,  with  no  resultant  benefit  to  the  wage 
earner.  An  arbitrary  discrimination  is  also  created  between 
the  employes  themselves,  without  any  legal  basis  for  the  dis- 
tinction made  in  the  classes  of  employes,  in  the  application  to 
labor  of  the  minimum  wage. 

As  we  have  seen,  there  can,  under  the  Minnesota  statute,  be 
given  no  consideration  to  the  experience,  capacity  or  ability  of 
the  different  employes  to  whom  the  minimum  wage  is  applied. 
The  basis  of  computation  must  be  the  same  for  all  classes,  and 
the  standard  of  living  must  be  taken  as  the  same  for  all.  No 
allowance  can  be  made  for  the  value  to  the  employe  of  the  op- 
portunity for  practical  instruction ;  he  is  deprived  of  any  wage 
until  he  shall  reach  the  efficiency  measured  by  the  wage  fixed. 
As  we  have  seen,  also,  the  result  in  any  occupation  will  be  to 
eliminate  from  employment  all  those  whose  efficiency  is  not 
proportionate  to  the  minimum  wage;  for  no  employer  can  be 
compelled,  and  could  not  be  expected,  especially  under  vain 
threats  of  enforcing  compulsion,  to  pay  for  labor  more  than  it 
is  worth. 

As  we  have  already  seen,  another  resulting  tendency  is  to 
make  the  minimum  wage  established  also  the  maximum  wage. 
At  the  same  time  that  lower  wages  are  artificially  and  by  com- 
pulsion brought  up  to  a  minimum  standard,  the  inevitable  re- 
sult is  to  make  the  wages  above  the  minimum  to  remain  sta- 
tionary, or  to  be  diminished  to  or  towards  the  minimum.  Such 
difficulty  can  be  obviated  only  by  the  fixing  of  wages  for  all 
classes  of  labor,  both  minimum  wages,  and  those  above  the 
minimum.  This,  of  course,  cannot  be  accomplished  by  legisla- 
tive enactment;  although  it  has  been  done  in  certain  occupa- 
tions through  the  co-operative  agency  of  trades  unionism.  The 
legislative  minimum  wage  is  antagonistic  to  trades  unionism, 
and  by  that  I  mean  to  the  features  of  trade  unionism  which  are 
generally  recognized  as  proper  and  efficient. 


70 

It  is  obvious,  without  further  argument,  that  the  well  recog- 
nized personal  privilege  and  liberty  of  contract,  both  of  em- 
ploye and  employer,  are  diminished  by  the  enforcement  of 
the  minimum  wage  statute.  The  resulting  disadvantages  are 
altogether,  I  believe,  to  the  employe,  more  than  to  the  em- 
ployer; but  the  fact  that  the  employer  is  thereby  prejudiced 
is  sufficient  to  require  a  holding  by  the  courts  that  the  statute 
is  void,  unless  it  can  be  held  as  a  proper  exercise  of  the  police 
power. 

Manifestly,  the  enforcement  of  such  statute  has  the  effect  to 
compel  the  private  employer  to  contribute  money  for  the  bene- 
fit of  others,  whether  these  others  be  regarded  as  individuals  or 
the  general  public.  It  results  in  an  arbitrary  assessment  upon 
the  employer  for  the  benefit  of  others. 

This,  and  other  effects  of  the  law,  including  those  already  dis- 
cussed, make  it  repugnant  to  constitutional  prohibitions;  be- 
cause no  theory  of  the  police  power  can  warrant  its  enforcement 
by  the  courts.  This  lack  of  warrant  for  claiming  the  power 
to  enact  and  enforce  this  sort  of  legislation  has  already  been 
shown. 

CONCLUSION. 

There  is  no  attempt  in  this  discussion  to  contravert  the  theory 
advanced  upon  an  ethical  basis,  that  every  employe  has,  as  a 
part  of  his  generic  right  to  exist  as  a  person,  the  natural  and 
moral  right  to  be  furnished  with  sufficient  sustenance  to  main- 
tain life  and  to  maintain  him  in  health  and  reasonable  com- 
fort. This,  however,  is  far  from  admitting  that  that  natural 
right  of  his  to  receive  either  proves,  or  tends  to  prove,  a  corres- 
ponding duty  on  the  part  of  one  who  happens  to  be  his  employer 
to  furnish  all  that  sustenance  and  means  for  life,  health  and 
comfort,  or  any  part  of  it,  except  in  so  far  as  healthful  and 
comfortable  conditions  of  work,  while  employed,  are  concerned. 

The  forces  of  the  inexorable  law  of  supply  and  demand  and 
of  other  natural  economic  laws,  cannot  with  impunity  be  defied 
by  the  legislative  fiat  of  man.  Relief  from  their  effects  may  be 
achieved,  and  to  a  large  decree  they  may  be  overcome,  by  co- 
operative organization.  Such  co-operation  may  be  promoted 
by  proper  constitutional  measures;  but  the  efficacy  of  any 


71 

legislative  enactment  relating  to  a  minimum  wage  is  not  so 
much  from  its  compulsory  features  as  it  is  from  its  encourage- 
ment and  assistance  to  the  co-operation  of  those  more  benevo- 
lently inclined  or  having  a  higher  ethical  sense.  For  this  rea- 
son, the  non-compulsory  statutes  of  Massachusetts  and  Nebras- 
ka are  based  upon  a  scientific  theory  and  consistent  with  and 
promotive  of  practical  benefit  for  the  classes  who  are  intended 
as  the  beneficiaries  of  such  legislation. 

A  compulsory  legislative  minimum  wage  necessarily  results 
in  such  disarrangement  of  the  conditions  of  labor,  trade,  com- 
merce and  industry,  that  the  evils  resulting  require  greater 
remedial  agencies  for  reform  than  are  comprised  in  any  reform 
attempted  through  the  minimum  wage  itself.  The  State  has  no 
right  to  inject  such  disturbing  elements  -as  the  compulsory 
minimum  wage  into  the  social  and  industrial  life  of  its  citizens, 
unless  and  until  it  has  provided  in  advance  the  remedies  for  the 
resulting  evils.  It  must  provide  for  the  army  of  lower  wage 
earners  who  are  thereby  rendered  job-less.  It  must  provide 
special  education  for  the  occupations  to  which  the  minimum 
wage  is  to  be  applied.  It  must  raise  and  maintain  the  lower 
class  of  laborers  to  the  standard  of  efficiency  established  by  the 
minimum  wage.  It  must  prevent,  by  stricter  immigration  laws, 
the  influx  into  the  labor  markets  of  this  nation  of  a  continuous 
stream  of  incompetents.  Until  such  immigration  restrictions 
are  established,  no  remedy  for  the  evil  conditions  resulting  from 
the  legislative  defiance  of  the  natural  law  of  supply  and  de- 
mand, can  be  adequately  provided. 

The  compulsory  legislative  minimum  wage,  particularly  as 
contemplated  by  the  Minnesota  statute  of  1913,  is  not  only  in- 
advisable, because  it  is  impracticable  and  unworkable,  and  be- 
cause it  is  inimical  to  the  interests  of  both  employes  and  em- 
ployers ;  but  it  is  also  unconstitutional  and  cannot  be  enforced 
against  those  employers  who  do  not  choose  voluntarily  to  sub- 
mit to  the  proceedings  taken  under  it. 

The  police  power  of  the  State  is  not  a  sufficient  basis  for  such 
legislation.  The  regulation  of  hours  or  even  of  wages  in  public 
work  has  no  relation  to  the  question,  because  such  regulations 
are  supported  upon  a  basis  entirely  apart  from  that  of  the  po- 
lice power.  The  decisions  sustaining  those  restrictions  upon 


72 

private  employment  which  have  been  sustained  in  the  case  of 
particular  employments  in  connection  with  particular  classes 
of  employes,  with  the  distinction  between  employments  which 
are  hazardous  and  those  which  are  not,  and  the  distinction 
as  to  those  which  are  hazardous  to  women,  although  perhaps 
not  to  other  classes, — all  these  decisions  show  that  the  legisla- 
tive minimum  wage  in  private  employment  cannot  be  based 
upon  the  police  power. 

As  already  pointed  out,  the  need  of  the  employe  in  question, 
which  it  made  the  duty  of  the  employer  to  supply,  is  a  need 
which  does  not  arise  out  of  the  occupation  in  question,  nor  out 
of  the  connection  of  the  employe  in  question  with  that  occupa- 
tion. It  is  a  need  which  exists  independently  of  the  occupa- 
tion; because  the  need  of  an  income  sufficient  to  sustain  life 
in  health  and  comfort  is  a  personal  need,  and  not  a  need  arising 
from  the  capacity  of  employe.  Even  if  we  assume  that  there 
is  a  natural  moral  right  to  have  that  need  supplied,  still,  the 
duty  to  supply  it  does  not  rest  and  cannot  be  made  to  rest,  as 
a  legal  duty,  upon  the  employer. 

There  are,  therefore,  lacking  the  elements  upon  which  to 
base  any  such  legislation.  While  the  subjects  of  health,  morals, 
comfort,  and  general  social  welfare,  are  generally  speaking  the 
subjects  out  of  which  arise  the  right  of  the  State  to  exercise 
its  police  power  in  legislation,  nevertheless,  as  has  already  been 
shown,  the  mere  insertion  in  an  act  of  the  statement  that  its 
purpose  is  to  promote  health,  morals  or  comfort,  or  any  other 
elements  of  social  welfare,  does  not  make  the  act  within  the 
police  power  of  the  State.  Neither  does  the  mere  fact  suffice 
that  the  results  obtained  by  the  act  would,  in  themselves,  be 
promotive  of  the  health,  morals  or  comfort  of  the  beneficiaries 
for  whose  advantage  the  act  is  intended.  In  order  to  impose 
upon  a  particular  occupation  or  a  particular  employer  the  com- 
pulsory burden  of  contributing,  either  directly  or  indirectly,  to 
his  employe,  whether  by  concessions  or  by  cash  payments,  for 
providing  for  his  health,  morals  or  comfort,  it  must  appear  that 
the  object  sought  to  be  accomplished  by  the  act  has  some  "real, 
substantial  relation"  to  the  occupation  of  the  employer  in 
question  or  to  the  employment  in  question.  There  is  no  such 
source  or  relation  in  the  case  now  under  discussion ;  for  the  need 
which  is  to  be  supplied  does  not  arise  from  or  in  connection 


73 

with  the  employment.  The  fact  of  employment,  therefore,  can- 
not be  made  the  basis  of  compelling  the  employer  to  supply  that 
need. 

From  the  viewpoint  of  practicability,  the  Minnesota  Mini- 
mum Wage  Statute  is  unworkable.  From  the  viewpoint  of  pub- 
lic policy,  it  is  inexpedient.  From  the  viewpoint  of  the  law,  it 
is  unconstitutional  and  unenforcible.58 

ROME  G.  BROWN. 

Minneapolis,  Minnesota, 

February  2,  1914. 

58  Since  the  above  was  written,  the  Oregon  supreme  court  has  upheld  the 
Oregon  Minimum  Wage  Statute  in  the  case  of  Frank  C.  Stettler,  Apellant,  vs. 
Edwin  V.  O'Hara,  et  al,  Respondents,  decided  March  17,  1914,  reported,  139  Pa- 
cific Reporter,  743.  The  basis  of  the  decision  is,  that  in  view  of  a  quite  ex- 
tensively expressed  "common  belief"  by  certain  writers  upon  social  questions, 
although  not  directly  confirmed  by  any  adjudicated  case,  "the  court  can- 
not say,  beyond  all  question,  that  the  Act  is  a  plain,  palpable  invasion  of  rights 
secured  by  the  fundamental  law  and  has  no  real  or  substantial  relation  to  the 
protection  of  public  health,  public  morals  or  public  welfare."  Therefore,  view- 
ing the  claim  of  unconstitutionality  as  one  which  is  not  doubtful  "beyond  all 
question,"  the  Oregon  court,  by  holding  in  favor  of  constitutionality,  permits  a 
review  of  the  question  by  the  Federal  supreme  court,  which  review  would  not 
be  possible  in  this  case  if  the  decision  of  the  Oregon  court  had  been  otherwise. 
This  decision  shows  that  the  Oregon  supreme  court  overlooked  or  ignored  the 
distinction,  shown  in  the  foregoing  discussion,  between  statutes  regulating 
hours  in  private  employment  in  order  to  prevent  hazards  to  the  employee  aris- 
ing out  of  the  peculiar  nature  of  the  employment,  and  statutes  enacted  to  sup- 
ply needs  or  to  prevent  hazards  which  are  purely  personal  to  the  employee  and 
which  do  not  arise  out  of  or  in  connection  with  the  employment  in  question. 
The  failure  to  observe  this  distinction  is  to  ignore  the  distinction  between  a 
proper  and  improper  application  of  the  legislative  police  power.  Indeed  the 
Oregon  decision  is  based  upon  the  statement,  shown  in  the  above  discussion  to 
be  erroneous,  that  "every  argument  put  forward  to  sustain  the  maximum  hours 
law  or  upon  which  it  was  established  applies  equally  in  favor  of  the  constitu- 
tionality of  the  minimum  wage  law." 


APPENDIX. 
I. 

THE  MINNESOTA  STATUTE,  CHAP.  547,  GENL.  LAWS,  1913. 

An  Act  to  establish  a  minimum  wage  commission,  and  to  pro- 
vide for  the  determination  and  establishment  of  minimum 
wages  for  women  and  minors. 
Be  it  enacted  by  the  Legislature  of  the  State  of  Minnesota : 

Section  1.  There  is  hereby  established  a  commission  to  be 
known  as  the  minimum  wage  commission.  It  shall  consist  of 
three  persons,  one  of  whom  shall  be  the  commissioner  of  labor 
who  shall  be  the  chairman  of  the  commission,  the  governor  shall 
appoint  two  others,  one  of  whom  shall  be  an  employer  of  women, 
and  the  third  shall  be  a  woman,  who  shall  act  as  secretary  of 
the  commission.  The  first  appointments  shall  be  made  within 
sixty  days  after  the  passage  of  this  act  for  a  term  ending  Janu- 
ary 1,  1915.  Beginning  with  the  year  1915  the  appointments 
shall  be  for  two  years  from  the  first  day  of  January  and  until 
their  successors  qualify.  Any  vacancy  that  may  occur  shall  be 
filled  in  like  manner  for  the  unexpired  portion  of  the  term. 

Sec.  2.  The  commission  may  at  its  discretion  investigate  the 
wages  paid  to  women  and  minors  in  any  occupation  in  the  state. 
At  the  request  of  not  less  than  one  hundred  persons  engaged 
in  any  occupation  in  which  women  and  minors  are  employed, 
the  commission  shall  forthwith  make  such  investigation  as  here- 
in provided. 

Sec.  3.  Every  employer  of  women  and  minors  shall  keep  a 
register  of  the  names  and  addresses  of  and  wages  paid  to  all 
women  and  minors  employed  by  him,  together  with  number  of 
hours  that  they  are  employed  per  day  or  per  week;  and  every 
euch  employer  shall  on  request  permit  the  commission  or  any 
of  its  members  or  agents  to  inspect  such  register. 

Sec.  4.  The  commission  shall  specify  times  to  hold  public 
hearings  at  which  employers,  employes,  or  other  interested  per- 
sons may  appear  and  give  testimony  as  to  wages,  profits  and 
other  pertinent  conditions  of  the  occupation  or  industry.  The 
commission  or  any  member  thereof  shall  have  power  to  subpoena 
witnesses,  to  administer  oaths,  and  to  compel  the  production  of 
books,  papers,  and  other  evidence.  Witnesses  subpoenaed  by 
the  commission  may  be  allowed  such  compensation  for  travel 
and  attendance  as  the  commission  may  deem  reasonable,  to  an 
amount  not  exceeding  the  usual  mileage  and  per  diem  allowed 
by  our  courts  in  civil  cases. 


II 

Sec.  5.  If  after  investigation  of  any  occupation  the  commis- 
sion is  of  opinion  that  the  wages  paid  to  one-sixth  or  more  of 
the  women  or  minors  employed  therein  are  less  than  living 
wages,  the  commission  shall  forthwith  proceed  to  establish  le- 
gal minimum  rates  of  wages  for  said  occupation,  as  hereinafter 
described  and  provided. 

Sec.  6.  The  commission  shall  determine  the  minimum  wages 
sufficient  for  living  wages  for  women  and  minors  of  ordinary 
ability,  and  also  the  minimum  wages  sufficient  for  living  wages 
for  learners  and  apprentices.  The  commission  shall  then  issue 
an  order,  to  be  effective  thirty  days  thereafter,  making  the 
wages  thus  determined  the  minimum  wages  in  said  occupation 
throughout  the  state,  or  within  any  area  of  the  state  if  differ- 
ences in  the  cost  of  living  warrant  this  restriction.  A  copy  of 
said  order  shall  be  mailed,  so  far  as  practicable,  to  each  em- 
ployer affected;  and  each  such  employer  shall  be  required  to 
post  such  a  reasonable  number  of  copies  as  the  commission  may 
determine  in  each  building  or  other  work  place  in  which  affected 
workers  are  employed.  The  original  order  shall  be  filed  with 
the  commissioner  of  labor. 

Sec.  7.  The  commission  may  at  its  discretion  establish  in 
any  occupation  an  advisory  board  which  shall  serve  without 
pay,  consisting  of  not  less  than  three  nor  more  than  ten  persons 
representing  employers,  and  an  equal  number  of  persons  repre- 
senting the  workers  in  said  occupation,  and  of  one  or  more  dis- 
interested persons  appointed  by  the  commission  to  represent  the 
public ;  but  the  number  of  representatives  of  the  public  shall  not 
exceed  the  number  of  representatives  of  either  of  the  other  par- 
ties. At  least  one-fifth  of  the  membership  of  any  advisory 
board  shall  be  composed  of  women,  and  at  least  one  of  the  rep- 
resentatives of  the  public  shall  be  a  woman.  The  commission 
shall  make  rules  and  regulations  governing  the  selection  of 
members  and  the  modes  of  procedure  of  the  advisory  boards, 
and  shall  exercise  exclusive  jurisdiction  over  all  questions  aris- 
ing with  reference  to  the  validity  of  the  procedure  and  determi- 
nation of  said  boards.  Provided :  that  the  selection  of  mem- 
bers representing  employers  and  employes  shall  be,  so  far  as 
practicable,  through  election  by  employers  and  employes  re- 
spectively. 

Sec.  8.  Each  advisory  board  shall  have  the  same  power  as 
the  commission  to  subpoena  witnesses,  administer  oaths,  and 
compel  the  production  of  books,  papers,  and  other  evidence. 
Witnesses  subpoenaed  by  an  advisory  board  shall  be  allowed 


Ill 

the  same  compensation  as  when  subpoenaed  by  the  commission. 
Each  advisory  board  shall  recommend  to  the  commission  an  es- 
timate of  the  minimum  wages,  whether  by  time  rate  or  by  piece 
rate,  sufficient  for  living  wages  for  women  and  minors  of  ordi- 
nary ability,  and  an  estimate  of  the  minimum  wages  sufficient 
for  living  wages  for  learners  and  apprentices.  A  majority  of 
the  entire  membership  of  an  advisory  board  shall  be  necessary 
and  sufficient  to  recommend  wage  estimates  to  the  commission. 

Sec.  9.  Upon  receipt  of  such  estimates  of  wages  from  an  ad- 
visory board,  the  commission  shall  review  the  same,  and  if  it 
approves  them  shall  make  them  the  minimum  wages  in  said  oc- 
cupation, as  provided  in  section  6.  Such  wages  shall  be  regard- 
ed as  determined  by  the  commission  itself  and  the  order  of  the 
commission  putting  them  into  effect  shall  have  the  same  force 
and  authority  as  though  the  wages  were  determined  without  the 
assistance  of  an  advisory  board. 

Sec.  10.  All  rates  of  wages  ordered  by  the  commission  shall 
remain  in  force  until  new  rates  are  determined  and  established 
by  the  commission.  At  the  request  of  approximately  one-fourth 
of  the  employers  or  employes  in  an  occupation,  the  commission 
must  reconsider  the  rates  already  established  therein  and  may, 
if  it  sees  fit,  order  new  rates  of  minimum  wages  for  said  occu- 
pation. The  commission  may  likewise  reconsider  old  rates  and 
order  new  minimum  rates  on  its  own  initiative. 

Sec.  11.  For  any  occupation  in  which  a  minimum  time  rate 
of  wages  only  has  been  ordered  the  commission  may  issue  to  a 
woman  physically  defective  a  special  license  authoring  her  em- 
ployment at  a  wage  less  than  the  general  minimum  ordered  in 
said  occupation ;  and  the  commission  may  fix  a  special  wage  for 
such  person.  Provided :  that  the  number  of  such  persons  shall 
not  exceed  one-tenth  of  the  whole  number  of  workers  in  any 
establishment. 

Sec.  12.  Every  employer  in  any  occupation  is  hereby  pro- 
hibited from  employing  any  worker  at  less  than  the  living  wage 
or  minimum  wage  a>s  defined  in  this  act  and  determined  in  an 
order  of  the  commission ;  and  it  shall  be  unlawful  for  any  em- 
ployer to  employ  any  worker  at  less  than  said  living  or  mini- 
mum wage. 

Sec.  13.  It  shall  likewise  be  unlawful  for  any  employer  to 
discharge  or  in  any  manner  discriminate  against  any  employe 
because  such  employe  has  testified,  or  is  about  to  testify,  or  be- 
cause such  employer  believes  that  said  employe  is  about  to  testi- 
fy, in  any  investigation  or  proceeding  relative  to  the  enforce- 


IV 

ment  of  this  act. 

Sec.  14.  Any  worker  who  receives  less  than  the  minimum 
wage  ordered  by  the  commission  shall  be  entitled  to  recover  in 
civil  action  the  full  amount  due  as  measured  by  said  order  of 
the  commission,  together  with  costs  and  attorney's  fees  to  be 
fixed  by  the  court,  notwithstanding  any  agreement  to  work  for  a 
lesser  wage. 

Sec.  15.  The  commission  shall  enforce  the  provisions  of  this 
act,  and  determine  all  questions  arising  thereunder,  except  as 
otherwise  herein  provided. 

Sec.  16.  The  commission  shall  biennially  make  a  report  of  its 
work  to  the  governor  and  the  state  legislature,  and  such  reports 
shall  be  printed  and  distributed  as  in  the  case  of  other  execu- 
tive documents. 

Sec.  17.  The  members  of  the  commission  shall  be  reimbursed 
for  traveling  and  other  necessary  expenses  incurred  in  the  per- 
formance of  their  duties  on  the  commission.  The  woman  mem- 
ber shall  receive  a  salary  of  eighteen  hundred  dollars  annually 
for  her  work  as  secretary.  All  claims  of  the  commission  for 
expenses  necessarily  incurred  in  the  administration  of  this  act, 
but  not  exceeding  the  annual  appropriation  hereinafter  provid- 
ed, shall  be  presented  to  the  state  auditor  for  payment  by  war- 
rant upon  the  state  treasurer. 

Sec.  18.  There  is  appropriated  out  of  any  money  in  the  state 
treasury  not  otherwise  appropriated  for  the  fiscal  year  ending 
July  31,  1914,  the  sum  of  five  thousand  dollars  (f  5,000.00),  and 
for  the  fiscal  year  ending  July  31, 1915,  the  sum  of  five  thousand 
dollars  (f  5,000.00). 

Sec.  19.  Any  employer  violating  any  of  the  provisions  of  this 
act  shall  be  deemed  guilty  of  a  misdemeanor  and  upon  convic- 
tion thereof  shall  be  punished  for  each  offense  by  a  fine  of  not 
less  than  ten  nor  more  than  fifty  dollars  or  by  imprisonment  for 
not  less  than  ten  nor  more  than  sixty  days. 

Sec.  20.  Throughout  this  act  the  following  words  and  phrases 
as  used  herein  shall  be  considered  to  have  the  following  mean- 
ings respectively,  unless  the  context  clearly  indicates  a  differ- 
ent meaning  in  the  connection  used : 

(1)  The  terms  "living  wages"  or  "living"  wages"  shall  mean 
wages  sufficient  to  main  the  worker  in  health  and  supply 
him  with  the  necessary  comforts  and  conditions  of  reasonable 
life;  and  where  the  words  "minimum  wage"  or  "minimum 
wages"  are  used  in  this  act,  the  same  shall  be  deemed  to  have 
the  same  meaning  as  "living  wage"  or  "living  wages." 


(2)  The  terms  "rate"  or  "rates"  shall  mean  rate  or  rates  of 
wages. 

(3)  The  term  "commission"  shall  mean  the  minimum  wage 
commission. 

(4)  The  term  "woman"  shall  mean  a  person  of  the  female 
sex  eighteen  years  of  age  or  over. 

(5)  The  term  "minor"  shall  mean  a  male  person  under  the 
age  of  twenty-one  years,  or  a  female  person  under  the  age  of 
eighteen  years. 

(6)  The  terms  "learner"  and  "apprentice"  may  mean  either 
a  woman  or  a  minor. 

(7)  The  terms  "worker"  or  "employe"  may  mean  a  woman, 
a  minor,  a  learner,  or  an  apprentice,  who  is  employed  for  wages. 

(8)  The  term  "occupation"  shall  mean  any  business,  indus- 
try, trade,  or  branch  of  a  trade  in  which  woman  or  minors  are 
employed. 

Sec.  20.  This  act  shall  take  effect  and  be  in  force  from  and 
after  its  passage. 

Approved  April  26,  1913. 

II. 

RESOLUTION  OF  MINNESOTA  ADVISORY  BOARD  REQUESTING  AN- 
SWERS TO  CERTAIN  QUESTIONS. 

Whereas,  it  is  not  entirely  clear  what  powers  and  duties  of 
the  Commission  or  ourselves  as  an  advisory  board  have,  or  by 
what  methods  we  shall  proceed,  in  the  matter  of  fixing  a  living 
wage,  and  it  is  advisable  in  order  that  time  may  be  saved  and  we 
may  do  our  work  speedily  and  to  the  best  advantage  that  we  be 
advised  upon  those  matters  at  once; 

Now,  therefore,  be  it  resolved  that  we  request  the  Commis- 
sion to  submit  the  following  questions  to  the  Attorney  Gen- 
eral for  his  answer  in  writing  so  that  we  may  have  them  before 
us  for  our  guidance  in  our  work. 

1.  Must  not  the  Commission  fix  a  minimum  wage  in  the 
"Occupation"  for  the  entire  state  at  one  time?  In  other  words, 
can  the  Commission  investigate  the  minimum  wage  in  any 
"Occupation"  and  act  upon  it  within  a  district  less  in  extent 
than  the  entire  state?  It  is  claimed  by  some  that  the  action 
of  the  Commission  must  be  with  reference  to  and  for  the  en- 
tire state,  though  in  fixing  the  actual  minimum  it  may  vary 
the  minimum  in  different  parts  of  the  state;  but  though  the 
minimum  may  differ  in  various  parts  of  the  state  they  must 
all  be  fixed  at  the  same  time  and  as  part  of  the  same  investiga- 
tion and  proceeding. 


VI 

2.  Section  5  provides  that  the  Commission  shall  establish 
a  minimum  rate  of  wages  for  an  "Occupation,"  if,  after  careful 
investigation,  the  Commission  is  of  opinion  the  wages  paid  to 
one-sixth  or  more  of  the  women  or  minors  employed  therein  are 
less  than  living  wages.     Can  the  Commission  fix  a  minimum 
wage  unless  upon  such  investigation  they  find  that  at  least  one- 
sixth  of  the  women  or  minors  employed  in  the  "Occupation" 
within  the  state  are  receiving  less  than  living  wages?     Must 
they  find  that  one-sixth  or  more  of  the  women  are  receiving 
less  than  living  wages  before  they  can  fix  minimum  wages  for 
women,  and  that  one-sixth  or  more  of  the  minors  employed  in 
the  "Occupation"  throughout  the  state  are  receiving  less  than 
living  wages  before  they  can  fix  the  minimum  wage  for  minors? 
Or,  can  they  consider  women  and  minors  as  belonging  to  the 
same  clas®  and  fix  minimum  wages  for  each  if  they  find  one- 
sixth  of  the  aggregate  number  of  women  and  minors  are  receiv- 
ing less  than  living  wages? 

Must  the  Commission  fix  a  minimum  for  both  women  and  mi- 
nors in  the  "Occupation,"  if  they  fix  a  minimum  for  either? 

Can  the  minimum  fixed  for  women  differ  in  amount  from 
that  fixed  for  minors  in  the  same  "Occupation,"  and,  if  so,  on 
what  basis  must  the  difference  be  fixed?  Can  the  Commission 
fix  a  different  minimum  for  male  and  female  minors  in  the  same 
"Occupation"? 

3.  What  is  an  apprentice  or  learner?    By  what  rule  shall 
the  Commission  determine  what  is  an  apprentice,  and  what  is 
a  learner?    Must  the  minimum  for  apprentices  be  the  same  as 
for  ordinary  workers?    If  not,  on  what  basis  must  the  Com- 
mission fix  the  minimum  for  apprentices,  if  the  cost  of  living 
is  to  determine  the  wage? 

4.  Must  the  Commission  make  the  minimum  apply  to  all 
classes  without  regard  to  the  necessity  of  the  class  or  of  the^in- 
dividual  in  the  class?    By  what  rule,  if  any,  is  the  Commission 
to  determine  what  is  necessary  to  maintain  the  worker  in  health, 
and  what  are  the  necessary  comforts  and  conditions  of  reasona- 
ble life? 

Can  the  minimum  wage  be  varied  or  fixed,  having  in  mind 
the  ability  of  the  employer  to  pay  the  wage,  and  having  in  mind 
the  necessity  of  the  employe  to  contribute  to  the  support  of  a 
family  or  others  dependent? 

Must  not  the  wage  be  fixed  solely  with  reference  to  the  actual 
needs  of  the  employe  of  ordinary  ability  for  a  decent  livelihood 
for  the  employe  alone,  without  allowing  anything  to  enable  the 
employe  to  contribute  to  the  support  of  a  dependent,  and  with- 


VII 

out  allowing  anything  for  education  or  amusement  or  for  cloth- 
ing or  housing  beyond  that  which  will  afford  a  minimum  of  com- 
fort and  amusement? 

Can  the  Commission  in  fixing  a  minimum  wage  allow  any- 
thing off  or  in  reduction  because  of  the  advantages,  educational 
or  otherwise,  which  the  employe  gets  from  the  particular  em- 
ployment? 

5.  In  case  the  Commission  should  promulgate  a  wage  rate 
which  was  unsatisfactory  to  some  employer  or  employers,  could 
the  employer  so  objecting  be  compelled  to  comply?  Would  a 
rate  fixed  by  the  Commission  in  the  manner  provided  by  the 
Minnesota  Minimum  Wage  Statute  be  enforcible?  May  we  not 
expect  that  the  court  would  hold  it  unenforcible? 

This  last  question  is  suggested  because  it  certainly  is  im- 
portant in  determining  how  far  the  Commission  should  attempt 
to  go.  It  also  bears  on  the  question  of  the  advisability  of  or- 
ganizing an  advisory  board,  and  would  also  weigh  with  any 
person  who  was  considering  accepting  a  position  as  a  member 
of  the  advisory  board.  It  would  be  very  embarrassing  to  go 
through  all  the  formalities  of  fixing  a  wage  rate  under  the  stat- 
ute and  then  have  it  declared  that  there  was  no  power  to  fix 
such  rate,  and  no  power  to  enforce  it.  Such  result  would  also 
be  prejudicial  to  the  final  accomplishment  of  the  meritorious 
object  of  bringing  about  a  proper  wage  adjustment. 

III. 

MINIMUM  WAGE  STATUTES  IN  OTHER  STATES. 
Massachusetts :     (Chapter  706,  Acts  1912  as  amended  by  Chap- 
ters 330  and  673,  Acts  1913). 

Wage  commission,  3  persons.  Duty  to  enquire  into  wages  of 
female  employes  in  any  occupation  in  the  State  if  Commission 
has  reason  to  believe  that  wages  paid  substantial  number  of 
such  employes  are  inadequate  "to  supply  the  necessary  cost  of 
living  and  to  maintain  the  workers  in  health." 

May  establish  Wage  Board  as  to  any  occupation ;  which  shall 
determine  the  minimum  wage,  whether  by  time  rate  or  piece 
rate,  suitable  for  a  female  employe  of  ordinary  ability  in  the 
occupation  in  question  and  also  minimum  wage  for  learners 
and  apprentices  and  for  minors  below  18  years.  Wage  Board 
reports  to  Commission.  If  Commission  approves,  then  hearing 
to  employer  on  14  days'  notice.  After  such  hearing  Commis- 
sion may  finally  approve  and  enter  decree  noting  the  names 
of  employers  who  fail  or  refuse  to  accept  such  minimum  wage. 


VIII 

Afterwards  if  it  wishes  Commission  may  publish  the  names  of 
employers  from  time  to  time  whom  it  finds  are  refusing  to  fol- 
low the  recommendation.  But  employer  may  file  declaration  in 
court  asking  for  review  of  recommendation  by  Commission; 
and  if  employer  sustained,  then  publication  of  his  name  is  pro- 
hibited. 

The  only  penalty  is  for  discharge  of  employe  for  testifying 
in  connection  with  minimum  wage  hearing.  In  case  recommen- 
dation is  by  less  than  two-thirds  of  a  Wage  Board  the  Com- 
mission reports  the  recommendation  to  the  general  court.  Spe- 
cial licenses  provided  for. 

Commission  itself  enquires  into  wages  for  minors  and  deter- 
mins  wages  with  proceedings  same  as  on  recommendation  by 
Wage  Board  for  women.  Every  employer  keeps  a  register. 
Newspapers  compelled  to  publish  at  regular  rates.  No  libel 
action  except  for  willful  misrepresentation. 

Nebraska    ( Chapter  211,  Laws  1913)  : 

Provisions  substantially  the  same  as  in  Massachusetts  ex- 
cept that  hearing  to  employer  before  Wage  Board  is  on  30  days' 
notice  and  Commission  shall  within  thirty  days  after  final  ap- 
proval after  hearing,  publish  name  of  delinquent  employers. 

Oregon     (Chapter  62,  Laws  of  1913)  : 

Commission,  3  members.  Duty  to  fix  (a)  standard  hours  of 
employment  for  women  or  minors  in  any  occupation,  (b)  con- 
ditions of  labor  for  women  and  minors,  (c)  minimum  wage 
for  women  in  any  occupation,  necessary  "to  supply  the  neces- 
sary cost  of  living  and  maintain  them  in  good  health"  and  (d) 
minimum  wage  for  minors  "unreasonably  low  for  such  minor 
workers." 

Commission  may  hold  public  hearings  for  preliminary  in- 
vestigation and  after  such  investigation  if  it  is  of  the  opinion 
that  any  substantial  number  of  women  workers  in  any  occupa- 
tion are  working  for  unreasonable  hours  or  bad  conditions  or 
inadequate  wages,  the  Commission  may  call  a  Conference  which 
will  enquire  into  the  matter  and  submit  its  report  to  the  Com- 
mission with  recommendation.  It  may  recommend  minimum 
wage  for  women  workers  of  average,  ordinary  ability,  sufficient 
to  supply  the  necessary  cost  of  living  and  maintain  them  in 
health  and  may  also  recommend  minimum  wages  for  learners 
and  apprentices  which  shall  be  less  than  that  for  regular  women 
workers. 

On  report  from  the  Conference,  the  Commission  review,  the 
same  and  if  it  approves  it  shall  then  publish  a  notice  not  less 
than  once  a  week  for  four  successive  weeks  in  two  newspapers 
of  general  circulation,  of  hearing  for  people  interested;  and 


IX 

after  hearing  it  may  make  such  order  as  it  deems  necessary  to 
carry  into  effect  the  recommendation,  which  order  becomes  ef- 
fective sixty  days  after  it  is  made,  and  afterwards  it  is  unlaw- 
ful for  employers  to  disregard  such  order.  Special  licenses  al- 
lowed. 

Commission  itself  may  enquire  into  wages  for  minors  and 
may  issue  its  order  after  notice  and  hearing,  as  for  women  work- 
ers, which  order  is  compulsory  on  employers.  Commission  au- 
thorized to  make  different  orders  for  same  occupation  in  dif- 
ferent parts  of  the  state  when  it  deems  conditions  justify  it,  All 
orders  of  the  Commission,  except  on  questions  of  fact,  appeala- 
ble to  the  Circuit  Court  for  Multnomah  County  and  from  that 
court  to  the  State  Supreme  Court.  The  penalty  on  employer 
$25  to  $100  or  imprisonment  10  days  to  3  months,  or  both. 
Penalty  for  discharging  employe  for  testifying.  Employe  may 
recover  excess. 

Washington  (Chapter  174,  Laws  1913)  : 

Prohibits  employment  of  women  workers  "at  wages  which  are 
not  adequate  for  their  maintenance."  Creates  Commission  to 
establish  wages  for  women  workers  and  minors  "as  shall  be 
held  to  be  reasonable  and  not  detrimental  to  health  and  morals 
and  which  shall  be  sufficient  for  the  decent  maintenance  of 
women." 

A  minor  is  a  person  of  either  sex  under  18  years.  Commis- 
sion may  hold  public  hearings  on  notice;  and  if  after  such 
investigation  they  find  wages  of  female  employes  in  any  occu- 
pation inadequate  to  supply  them  necessary  cost  of  living  and 
to  maintain  workers  in  health,  then  they  call  a  Conference 
which  may  investigate  and  make  recommendations  to  Commis- 
sion. 

Commission  reviews  such  recommendations,  may  approve 
them,  and  after  such  approval  issue  an  obligatory  order  effec- 
tive in  sixty  days  or  longer.  After  such  order  it  is  unlawful  for 
any  employer  in  such  occupation  to  employ  women  over  18 
years  of  age  for  less  than  the  rate  of  wages  fixed.  Special  li- 
censes allowed. 

Commission  itself  determines  wages  "suitable  for  minors1' 
and  may  issue  its  obligatory  order  as  for  women  and  after  such 
issuance  of  such  order  it  is  unlawful  for  employer  to  employ 
minor  for  less  than  the  wage  fixed.  Penalty  to  employer  who 
discharges  for  testifying  and  for  violation  of  commission  or- 
ders, penalty  $25  to  $100;  and  employe  may  recover  differ- 
ence. No  appeal  from  decision  of  commission  upon  question  of 
fact  but  right  of  appeal  to  either  employer  or  employe  on  ques- 
tions of  law. 


Colorado  (Chapter  110,  Laws  of  1913)  : 

State  Wage  Board,  3  members,  to  enquire  into  wages  to  fe- 
male employes  above  18  years  in  any  mercantile,  manufactur- 
ing, laundry,  hotel,  restaurant,  telephone  or  telegraph  business 
to  enquire  whether  wages  are  "inadequate  to  supply  the  neces- 
sary cost  of  living,  maintain  them  in  health  and  supply  the  nec- 
essary comforts  of  life."  After  inquiry  the  Wage  Board  may 
fix  the  minimum  wage,  when  agreed  to  by  two  members  of  the 
Board.  Then  the  Board  gives  thirty  days'  notice  for  hearing 
in  the  locality  of  the  industry  affected,  by  publication  in  news- 
paper and  mailing  copy  to  the  employer  affected.  After  such 
public  hearing  the  Board  may  issue  obligatory  order  to  be  ef- 
fective 60  days  from  the  date  of  order ;  and  afterwards  it  is  un- 
lawful for  any  employer  to  fail  to  comply  with  the  order,  which 
order  is  to  be  published  and  served  personally. 

Any  employer  affected  may  appeal  to  the  courts  on  the  ground 
that  the  order  is  unlawful  or  unreasonable,  but  the  evidence 
considered  on  such  appeal  is  confined  to  the  evidence  presented 
to  the  Board  in  the  case  from  the  decision  in  which  the  appeal 
is  taken.  Further  appeal  allowed  to  the  Supreme  Court,  Pen- 
alty to  employer  for  not  complying  with  order  is  fine  not  to 
exceed  $100  or  imprisonment  not  more  than  3  months,  or  both. 
Penalty  for  discharging  employe;  and  employe  may  recover  dif- 
ference. Special  licenses  provided  for. 

Wisconsin  ( Sections  1729,  s— 1  to  12,  Statutes  1913 ;  Chapter 
712,  Laws  1913)  : 

Wages  less  than  living  wage  to  any  female  or  minor  employe 
prohibited.  "Living  wage"  defined  to  mean  compensation  by 
time  or  piece  work  or  otherwise  "sufficient  to  enable  the  em- 
ploye receiving  it  to  maintain  himself  or  herself  under  condi- 
tions consistent  with  his  or  her  welfare." 

The  Industrial  Commission,  already  established,  given  jur- 
isdiction to  investigate,  ascertain,  determine  and  fix  living  wage 
pursuant  to  Sections  2394-41,  etc.,  relating  to  industrial  com- 
mission, providing  that  Commission  may  investigate  upon  no- 
tice and  hearing  and  promulgate  orders.  But  on  petition  of  em- 
ployer Commission  shall  allow  special  hearing  on  the  reasona- 
bleness of  any  order,  which  hearing  shall  be  had;  and  after- 
wards any  order  of  the  Commission  is  subject  tp  review  by  ap- 
plication of  employer  to  court  against  the  Commission  as  de- 
fendant to  vacate  and  set  aside  order ;  which  action  is  brought 
by  complaint  with  summons  with  power  of  injunction  on  hear- 
ing, with  power  of  court  to  review  or  re-submit  to  the  Commis- 
sion. Penalty  to  employer  not  less  than  $10  nor  more  than 
$100  for  each  failure  to  comply  with  Commission's  orders,  each 


XI 

day's  fault  to  constitute  offense. 

Commission  may  establish  Advisory  Board.  Provisions  as  to 
minors  who  shall  have  no  trade,  etc.  Commission  may  grant 
special  licenses  to  employe  unable  to  earn  the  wage,  permitting 
such  employe  to  work  for  a  wage  stated  which  is  commensorate 
with  his  or  her  ability.  No  such  licensee  shall  be  employed  at 
less  than  the  wage  fixed. 

Ohio  (Constitutional  Amendment,  adopted  Sept.  3,  1912)  : 

Amended  constitution  by  adding  articles  providing  that 
"laws  may  be  passed  fixing  and  regulating  hours  of  labor, 
establishing  a  minimum  wage  and  providing  for  comfort,  health, 
safety  and  general  welfare  of  all  employes,"  etc. 

Utah    (Chapter  63,  Laws  of  1913)  : 

Makes  it  unlawful  for  any  regular  employer  of  female  work- 
ers to  pay  any  women  less  than  the  wage  herein  specified,  to- 
wit:  Minors  under  18  years  not  less  than  .75c  per  day;  adult 
learners  and  apprentices  not  less  than  .90c  per  day  (1  year  con- 
stitutes apprentice  period) ;  for  adults  who  are  experienced  in 
the  work  they  are  employed  to  perform,  not  less  than  $1.25  per 
day. 

Regular  employers  of  female  workers  shall  give  certificate  of 
apprenticeship,  for  time  served  by  apprentices.  Any  regular 
employer  of  female  workers  paying  less  than  the  wage  specified 
guilty  of  misdemeanor. 

California     (Chapter  324,  Statutes  1913)  : 

Commission  of  5  members  with  duty  to  ascertain  wages,  hours 
and  conditions  of  labor,  etc.,  in  various  occupations  in  which 
women  and  minors  are  employed.  If,  after  investigation  (state- 
wide), wages  of  women  and  minors  found  inadequate  to  supply 
the  cost  of  proper  living  in  any  occupation,  Commission  may 
call  a  conference,  that  is,  "Wage  Board,"  whose  deliberations 
are  made  a  matter  of  record.  Wage  Board  may  inquire  and 
report  to  the  Commission  its  findings  as  to  the  minimum  wage 
adequate  to  supply  to  women  and  minors  engaged  in  the  oc- 
cupation in  question  "the  necessary  cost  of  proper  living  and 
to  maintain  the  health  and  welfare  of  such  women  and  minors." 

Commission  has  power  after  public  hearing  to  determine  min- 
imum wage  for  women  and  minors  in  any  occupation.  Such 
hearing  is  on  public  notice  in  newspapers  and  by  mailing  copy 
to  each  county  recorder  not  less  than  fourteen  days  before 
hearing.  After  such  hearing  Commission  may  make  a  manda- 
tory order  effective  in  sixty  days,  specifying  minimum  wage 
for  women  or  minors  in  the  occupation  in  question.  No  order 


XII 

to  become  effective  until  after  April  1,  1914.  Order  published 
and  recorded  in  each,  county  and  mailed  to  each  employer  in 
question.  Special  licenses  allowed. 

Penalty  for  discharging  employes  or  for  disregarding  order, 
not  less  than  $50  and  imprisonment  not  less  than  thirty  days, 
or  both.  Employe  may  sue  for  difference.  On  appeal  from  or- 
der, the  findings  of  fact  made  by  Commission  are,  in  absence 
of  fraud,  conclusive.  Appeal  within  twenty  days  allowed  to 
Superior  Court  of  certain  counties.  Answer  by  Commission 
with  return  by  Commission  of  all  documents  and  papers  and 
testimony  and  evidence.  The  court  may  confirm  or  set  aside  on 
grounds  ( 1 )  that  Commission  acted  in  excess  of  its  powers  and 
(2)  that  its  decision  was  procured  by  fraud.  Either  party  may 
appeal  from  Superior  Court  to  the  Supreme  Court. 

ALSO  IN  CALIFORNIA  (Chapter  98,  Proposal  Constitu- 
tional Amendments  1913).  Proposes  amendment  to  State 
Constitution  authorizing  legislature  to  establish  minimum  wage 
for  women  and  minors. 


THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 
STAMPED  BELOW 


AN  INITIAL  FINE  OF  25  CENTS 

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THIS  BOOK  ON  THE  DATE  DUE.  THE  PENALTY 
WILL  INCREASE  TO  5O  CENTS  ON  THE  FOURTH 
DAY  AND  TO  $1.OO  ON  THE  SEVENTH  DAY 
OVERDUE. 


UV  13  1933 

OV  13  1933    IUN161992 


- 


M    4 


'P  LP 


NOV 131990 


JV  0  6  1990 


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